Kevin Cole (University of San Diego School of Law) has posted Privileges, Justifications, and the Positive Law Model of the Fourth Amendment on SSRN. Here is the abstract:
Justice Gorsuch has recently shown considerable interest in what William Baude and James Stern call "The Positive Law Model of the Fourth Amendment." The model gives central effect to subconstitutional law in determining whether particular police activity constitutes a search or a seizure requiring Fourth Amendment justification. The model promises a solution to "third-party doctrine," which has long been criticized but seems increasingly problematic in a digital age. This brief comment explores how justifications in criminal law and privileges in tort law impact Baude and Stern's model. It concludes that justifications and privileges cause some difficulty for the model, particularly in the area of seizures, but that further elaboration of the model may address these difficulties.
The Baude & Stern paper is here: The Positive Law Model of the Fourth Amendment (129 Harvard L. Rev. 1821 (2016). More commentary from Professor Baude, relating to Justice Gorsuch's comments in Byrd v. United States, here: Yes, the Positive Law Model of the Fourth Amendment is Originalist. Orin Kerr discussed Justice Gorsuch's comments here: Three Reactions to the Oral Argument in Byrd v. United States (scroll down to point (3)).
Posted at 6:43 AM