Over time, and since Katz (1954), Justice Harlan's two-part approach has largely guided how courts construe privacy protections in the 4th Amendment context. As the second part of Harlan's approach involves what many consider to be amenable to empirical social science, a growing body of scholarship sets out to mark the boundaries of where, as Christine Scott-Hayward (CSU-Long Beach--criminology) et al., note, "society [reasonably] expects privacy." Increasingly, defense attorneys increasing turn to such research findings in their briefs and pleadings to courts.
While entirely descriptive, The Role of Empirical Scholarship in Fourth Amendment Privacy Jurisprudence levers 13 leading empirical papers in the 4th Amendment space and then identifies and dives deeply into the relatively (and absolutely) small number of judicial opinions that cite to the leading empirical work. The authors' main takeaway is one of frustration with the courts' reluctance to engage with empirical legal scholarship relevant to the question of societal expectations of privacy in the search and seizure context. (To be sure, any judicial reluctance to engage with empirical legal research is merely a sub-set of, for better or worse, courts' collective benign neglect of legal scholarship generally.)
In the end, the paper's findings (and the authors' frustration) both bump into and provide indirect support for a larger point that my Cornell colleague (and friend) Jeff Rachlinski described years ago (2011): “Empirical legal scholarship . . . is not the same as evidence-based law. Empirical legal scholarship resides primarily in the academy.” That relevant empirical legal scholarship will migrate from the academy and into judicial opinions is not a given. Moreover, any such migration will likely continue to vary across legal doctrines and case types.
Comments