Jun 152014
 June 15, 2014  Court, Surveillance, U.S.

Orin Kerr writes:

I recently posted a relatively short essay, “Katz Has Only One Step: The Irrelevance of Subjective Expectations,” that is forthcoming in a symposium issue of the University of Chicago Law Review. It’s about the ‘subjective expectation of privacy’ test in Fourth Amendment law — and more specifically, why that test is more myth than reality. Here’s the abstract:

This Article argues that the “subjective expectation of privacy” test is a phantom doctrine. The test exists on paper but has no impact on case outcomes. An empirical study of cases decided in 2012 indicates that majority of judicial opinions applying Katz do not even mention the subjective expectations test; opinions that mention the test usually do not apply it; and when courts apply it, the test makes no difference to the results.

The subjective test acts as a phantom doctrine because of an overlooked doctrinal shift. A close reading of Justice Harlan’s Katzconcurrence suggests that it was originally intended to restate the holdings of the Supreme Court’s caselaw on invited exposure. Under those cases, an individual waived Fourth Amendment rights by inviting others to observe their protected Fourth Amendment spaces. In later cases, however, the Supreme Court misunderstood this original design and recast those holdings as part of the objective prong of the test instead of the subjective test. This doctrinal shift quietly eliminated the role of the subjective test. The Supreme Court should abolish the subjective expectations test to clarify and simplify Fourth Amendment law.

Read more on WaPo The Volokh Conspiracy.

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