In Carpenter v. United States, the Supreme Court announced that seven days’ worth of historical cell-site location information (CSLI) was a “search” within the meaning of the Fourth Amendment. Scholars and lawyers have argued that this holding reflected the “mosaic theory” of the Fourth Amendment—considering a series of governmental actions in aggregate when evaluating whether […] Continue Reading >
Questions for “The Questionable Objectivity of Fourth Amendment Law”
Questions for “The Questionable Objectivity of Fourth Amendment Law”
Introduction In his insightful article, The Questionable Objectivity of Fourth Amendment Law, Orin Kerr challenges the Supreme Court’s repeated assertions that its Fourth Amendment jurisprudence is driven by objective standards in order to “promote[] evenhanded, uniform enforcement of the law.”[1] Rather, in the descriptive part of the article, Professor Kerr points to a number of […] Continue Reading >
The Lost Promise of Progressive Formalism
The Mosaic Theory’s Two Steps: Surveying Carpenter in the Lower Courts
Today, any number of troubling government pathologies—a lawless presidency, a bloated and unaccountable administrative state, the growth of an activist bench—are associated with the emergence of a judicial philosophy that disregards the “plain meaning” of the Constitution for a loose, unprincipled “living constitutionalism.” Many trace its origins to the Progressive Era (1890–1920), a time when […] Continue Reading >
Questions for “The Questionable Objectivity of Fourth Amendment Law”