The Supreme Court’s ‘reasonable expectation of privacy’ test under the Fourth Amendment has often been criticized as circular, and hence subjective and unpredictable. The Court is presumed to base its decisions on society’s expectations of privacy, while society’s expectations of privacy are themselves presumed to be based on the Court’s judgements. As a solution to this problem, property law has been repeatedly propounded as an independent, autonomous area of law from which the Supreme Court can glean reasonable expectations of privacy without falling back into tautological reasoning.
Such an approach presumes that property law is not itself circular. If it were, property would be subject to the very same criticisms that plague the reasonable expectations of privacy test. The ubiquitous ‘bundle-of-sticks’ interpretation of property law, however, is inherently circular. In this way, the standard realist bundle analysis fails to offer a coherent solution to the Supreme Court’s doctrinal concerns. In spite of this, property law can nonetheless provide solutions to circularity when viewed through another lens.
This Article is the first to apply the ‘New Private Law’ research framework in the context of the Fourth Amendment, thereby incorporating findings from cognitive science, sociology, and complex systems theory alongside doctrinal private law analyses. The Article demonstrates that the concept of ‘legal thinghood’ provides the necessary analytical tools to understand when and how property law can aid in avoiding circularity. Such a solution, however, does require that the realist approaches to property law – currently embraced by courts and legislatures – make way for a more nuanced vision informed by interdisciplinary approaches.
Marinotti, João, Escaping Circularity: the Fourth Amendment and Property Law (2021). Indiana Legal Studies Research Paper No 442, Maryland Law Review, forthcoming.