The Benefits of Using Investigative Legislation to Interpret the Fourth Amendment: A Response to Orin Kerr

by Nicholas Kahn-Fogel

Abstract

In a recent article, Professor Orin Kerr examines three approaches courts have taken in determining the consequences of privacy legislation for interpreting the Fourth Amendment. Some courts have used an “influence” model, drawing on legislative wisdom to delineate the contours of Fourth Amendment protection. Other courts have used a “displacement” approach; those courts rely on the existence of privacy legislation as a basis for denying constitutional protection, thus preserving the institutional advantages of regulating searches and seizures through thoughtful statutory directives over the blunt instrument of the Fourth Amendment. Finally, courts have sometimes used an “independence” model, asserting that privacy legislation is irrelevant to Fourth Amendment analysis. Professor Kerr argues that privacy legislation provides a poor indication of the societal values that should arguably inform Fourth Amendment interpretation, that implementation of an influence or displacement approach would entail considerable logistical difficulty, and that the influence and displacement models incentivize legislative and executive gamesmanship that would compromise the benefits of having a dual regime of constitutional and statutory regulation of government searches and seizures. Consequently, he favors the independence model. Professor Kerr raises critical issues that any advocate of influence or displacement must address. Nonetheless, I believe he underestimates the benefits and overestimates the costs of using privacy legislation as a guide to Fourth Amendment protection, particularly under a soft influence model that would rely only on a constellation of statutes reflecting broad national consensus, and only with regard to the question of whether government conduct constitutes a Fourth Amendment search. Courts can use such a model effectively to gauge societal values of constitutional significance. The model would also be consistent with Supreme Court precedent in the Fourth Amendment context and with its approach in other areas of constitutional law. Finally, this model would be unlikely to distort the legislative process. In this essay, I argue that courts should implement such a model to forge a more principled, predictable Fourth Amendment jurisprudence.

 

About the Author

Nicholas Kahn-Fogel is an Associate Professor at the University of Arkansas at Little Rock’s William H. Bowen School of Law. Before joining the Bowen faculty, Professor Kahn-Fogel was on the faculty of the University of Zambia School of Law. He has returned to Zambia frequently for teaching and research.

Professor Kahn-Fogel’s scholarship focuses on comparative law and criminal procedure. His recent work has appeared in the Cornell Journal of Law and Public Policy, the Kentucky Law Journal, and the University of Pennsylvania Journal of International Law. His articles have been cited by courts, practitioners, and scholars, the leading treatise on American criminal procedure, popular media, reports by leading international NGOs, and a report by the British government’s Department for International Development. The National Association of Criminal Defense Lawyers has recognized his work on eyewitness identification as “must read” scholarship.

Professor Kahn-Fogel has served on the editorial board of the Zambia Law Journal, and he currently serves on the editorial board of the Case Commentary Unit of the Southern African Institute for Policy and Research. Professor Kahn-Fogel is also a member of the board of the Center for Arkansas Legal Services. He received his bachelor’s degree in History from Cornell and his J.D. from Stanford Law School. He is licensed to practice law in New York.