Katz as Originalism

The “reasonable expectation of privacy” test of Katz v. United States is a common target of attack by originalist Justices and originalist scholars. They argue that the Katz test for identifying a Fourth Amendment search should be rejected because it lacks a foundation in the Constitution’s text or original public meaning. This is not just an academic debate. The recent ascendancy of originalists to the Supreme Court creates a serious risk that the reasonable expectation of privacy test will be overturned and replaced by whatever an originalist approach might produce. This Article argues that originalist opposition to Katz is misplaced. Properly understood, the Katz test is consistent with both originalism and textualism. The reasonable expectation of privacy framework both accurately tracks the constitutional text and reflects a sound interpretation of its original public meaning. Instead of creating a constitutional free-for-all, the test merely preserves the original role of the Fourth Amendment against the threat of technological change. Ironically, the alternatives that originalist and textualist critics have proposed are either Katz in disguise or are less rooted in text and original public meaning than Katz itself. An originalist might want to restate Katz using the constitutional text. But that is a matter of form, not substance

Blogs and the Legal Academy

This paper\u27s focus is on today’s technology and ask whether blogs as we know them today are conducive to advancing scholarship. This paper\u27s conclusion is that relative to other forms of communication, blogs do not provide a particularly good platform for advancing serious legal scholarship. The blog format focuses reader attention on recent thoughts rather than deep ones. The tyranny of reverse chronological order limits the scholarly usefulness of blogs by leading the reader to the latest instead of the best. This doesn’t mean that blogs can’t advance scholarship. The impact of any blog depends on what its author decides to post. But the format of blogs makes it relatively hard to sustain a deep conversation about an important legal issue. As a result, blogs can play an important role in the dissemination and critique of scholarship, but, on the whole, they tend to provide lighter fare than other media. This paper suggests that blogs will probably have the greatest impact on legal scholarship at the student level: student scholarship published in law reviews has often focused on recent developments, and blogs may eventually usurp that role. This paper\u27s second point is that blogs provide a promising platform for law professors interested in being public intellectuals. Law professor blogs allow professors to participate in and influence broader debates on lawrelated topics. This role isn’t new, but it’s an interesting new spin on an old role. Blog posts have some important advantages over more traditional forms of public speech, such as op-eds, magazine articles, and TV or radio appearances. The opportunities aren’t specific to law professors, of course. Anyone can start a blog, and anyone can use a blog to become a public intellectual. But the legal field is particularly conducive to this kind of role, and law professors are in a good position to take advantage of it

The Mosaic Theory of the Fourth Amendment

In the Supreme Court\u27s recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions had always evaluated each step of an investigation individually. Jones introduced what we might call a mosaic theory of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search. This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that a mosaic theory would raise, and it analyzes the merits of the proposed new method of Fourth Amendment analysis. The Article makes three major points. First, the mosaic theory represents a dramatic departure from the basic building block of existing Fourth Amendment doctrine. Second, adopting the mosaic theory would require courts to answer a long list of novel and challenging questions. Third, courts should reject the theory and retain the traditional sequential approach to Fourth Amendment analysis. The mosaic approach reflects legitimate concerns, but implementing it would be exceedingly difficult in light of rapid technological change. Courts can better respond to the concerns animating the mosaic theory within the traditional parameters of the sequential approach to Fourth Amendment analysis

Rethinking Patent Law in the Administrative State

This Article challenges the Supreme Court\u27s recent holding that administrative law doctrines should apply to the patent system. The Article contends that the dynamics ofpatent law derive not from public law regulation, but rather from the private law doctrines of contract, property, and tort. Based on this insight, the Article argues that administrative law doctrines such as Chevron and the Administrative Procedure Act should not apply within patent law, and that such doctrines in fact pose a serious threat to the proper functioning of the patent system

The Decline of the Socratic Method at Harvard

The Socratic method has long been considered a defining element of American legal education. Among both lawyers and laypersons, Socratic questioning is perceived as a rite of passage that all law students endure in their first year of law school. However, the traditional Socratic method is today more myth than reality because legal pedagogy has changed dramatically, and the Socratic method still common during the 1950s and 1960s is nearly extinct. The purpose of this paper is to explore this revolution by examining the teaching styles, attitudes, and classroom influences of the faculty at one leading law school. Section II of this article summarizes the debate over the Socratic method that has appeared in both academic journals and popular culture. The discussion explores the strengths and weaknesses of the method and provides a context for understanding the various approaches to its use. Section III presents the results of interviews and explores how today\u27s Harvard Law School professors teach law. The professors are categorized as traditionalists, who derive their style from the traditional Socratic method; quasi-traditionalists, who combine significant elements of the Socratic dialectic with substantial innovations; and counter-traditionalists, who expressly reject the Socratic paradigm. Section IV profiles the professors in each of the three categories, focusing on how they reacted to the Socratic method as students and how their teaching styles have changed since they began teaching. Section V concludes the article by offering an explanation for the decline of the Socratic method at Harvard and suggesting how the results of this article might lead to a rethinking of the contemporary debate over the Socratic method