Check this out: a new article from lawprof Mailyn Fidler (U Nebraska SOL), “Warranted Exclusion: A Case for a Fourth Amendment Built on the Right to Exclude,” 76 SMU L. Rev. ___ (2023) (forthcoming).
The Abstract:
Searches intrude; fundamentally, they infringe on a right to exclude. So that right should form the basis of Fourth Amendment protections. Current Fourth Amendment doctrine—the reasonable expectation of privacy test—struggles with conceptual clarity and predictability. And the leading competitor, what I call the “maximalist” property approach, risks troublingly narrow results. This Article provides a new alternative: Fourth Amendment protection should be anchored in a flexible conception of property rights—what this Article terms a “situational right to exclude.” When a searchee has a right to exclude some law-abiding person from the thing to be searched, in some circumstance, the government must obtain a warrant before gathering information about that item. Keeping the government out is warranted when an individual has a situational right to exclude; it is exactly then that the government must get a warrant.
Download the draft here (SSRN).
Are we reading this one? Because this is one of the areas that we’re digging into in the courts, you bet we are.
