• Corpus ID: 156871745

The Positive Law Model of the Fourth Amendment

@article{Baude2016ThePL,
  title={The Positive Law Model of the Fourth Amendment},
  author={William Baude and James Y. Stern},
  journal={Harvard Law Review},
  year={2016},
  volume={129},
  pages={1821-1889}
}
For fifty years, courts have used a “reasonable expectation of privacy” standard to define “searches” under the Fourth Amendment. As others have recognized, that doctrine is subjective, unpredictable, and conceptually confused, but viable alternatives have been slow to emerge. This Article supplies one.We argue that Fourth Amendment protection should be anchored in background positive law. The touchstone of the search-and-seizure analysis should be whether government officials have done… 
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