Has the Fourth Amendment Jumped the Shark?

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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7 Responses

  1. Ryan Miller says:

    I would guess one reason we may see more 4A cases is because it represents one area of law that has a direct and intimate connection with many, many people’s lives. The intersection of abject government power (police) and the people’s right to be free of unreasonable use of that power, perhaps, is important enough to require direct and constant attention by the Court…more so than, say, a dispute between a creditor and a bankruptcy trustee on priority. Besides, a portion of the patent bar would say the Court is taking *too many* IP cases, so this all depends on who is asked.

  2. T Shak says:

    Criminal cases make up about a quarter of all cases appealed to federal circuit courts (about 13,000 of 45,000 last year). Because arguing improper search is often a criminal defendant’s only out, I’d guess a sizable portion of those appeals are on Fourth Amendment grounds. With, say, 75 cert grants, on pure proportion you’d expect to see 15-20 criminal cases, of which it seems reasonable for a few to be Fourth Amendment-based.

    By contrast, only 100 or so antitrust cases make it to the Circuits each year. For IP it’s about 450. I think the answer here is, as they say, ‘volume’…

  3. Orin Kerr says:

    I believe reason is that the Supreme Court has held that every defendant facing jail time is entitled to a lawyer paid for by the state if he cannot afford one (Gideon); the Fourth Amendment’s exclusionary rule applies to the states through the Fourteenth Amendment, so it can be in play in every criminal case (Mapp); and the police investigations regulated by the Fourth Amendment can occur in an extraordinarily diverse set of facts that different lower court judges would like to regulate in different ways. You end up with lots of lower court disagreement, and therefore lots of splits for the Court to take.

  4. Gerard Magliocca says:

    I agree that the number of Fourth Amendment cases in the pool is disproportionately large and that circuit splits occur more often in that area than in bankruptcy, IP, etc.. But the Court tolerates plenty of circuit splits in a host of doctrinal areas because they conclude that the issues in those cases aren’t important enough to merit their attention. So that doesn’t tell me why the Court thinks Fourth Amendment circuit splits are especially important (at least much of the time)

    For example, lots of criminal defendants bring Strickland claims or sentencing challenges. I would say, though perhaps I’m just off base here, that the Court hears fewer cases on these issues. Is that because there are not that many circuit splits on the interpretation of the sentencing guidelines or on what constitutes ineffective assistance? I don’t think so.

  5. Vladimir says:

    When I clerked on the circuit court, my judge would periodically say, as we were assigning cases between the chambers, “You know, I haven’t had a good search case in a while. Yes, I feel like a search this month. Would you folks [i.e., the clerks] make sure to grab one for our chambers if you can.” I bet Supreme Court justices operate similarly. Searches, precisely because they are fact intensive, and generate visceral feelings, are a welcome relief from the more abstract questions raised by many constitutional provisions, and from the more technical questions posed by statutes such as ERISA.

    I’m just guessing, but your post brings home to me that there really aren’t any good reasons for searches to dominate the docket. I suspect justices are more likely to do error correction in 4th amendment cases, but to let mere errors slide in drabber areas.

  6. Orin Kerr says:

    Gerard,

    You are assuming that the Court is less tolerant of splits in the 4th Amendment area than elsewhere. I don’t think that’s true. There are lots and lots of splits in 4th Amendment law that the Court has never resolved and probably will never resolve.

    The Sentencing Guidelines are a special case. If there is a split in the interpretation of the Guidelines, that’s a problem for the Sentencing Commission, not the Supreme Court: The Court rarely intervenes. IAC claims don’t generate many splits because Strickland set the standard, so applications would just be error correction: The Court mostly takes those only when its a capital case.

    That’s my sense, at least.

  7. Jake says:

    Three reasons (at least) why the Supreme Court hears (or has to hear) so many Fourth Amendment search-and-seizure cases.

    (1) The Fourth Amendment bars “unreasonable” warrantless searches. It is the only provision in the Bill of Rights that mentions reasonableness as the legal standard. Since reasonableness, legally defined, is at issue, courts have work to do. Good heavens, rather than asking why the Supreme Court devotes so much time to analyzing the Fourth Amendment’s reasonableness standard, one might as well ask why fishermen set sail in order to catch fish.

    (2) Over time, earlier versions of the Supreme Court equated “unreasonable searches and seizures” with warrantless searches and seizures, a construction that distorts the text of the Fourth Amendment, and, needless to say, forces more Fourth Amendment search-and-seizure issues into litigation as the resolution method.

    (3) The suppression remedy for alleged Fourth Amendment search-and-seizure violations (an option to be considered but in no way the constitutionally exclusive remedy) incessantly fuels the need for judicial interpretations of earlier judicial interpretations of earlier judicial interpreations of (insert infinite regress) the Fourth Amendment.