Law Commons^™

Rewriting Whren V. United States, Jonathan Feingold, Devon Carbado

Faculty Scholarship

In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that …

Fourth Amendment Privacy In Public: A Fundamental Theory With Application To Location Tracking, Jordan Wallace-Wolf

Faculty Scholarship

When we walk out our front door, we are in public and other people may look at us. But intuitively, we don’t open ourselves up to unlimited scrutiny just by going outside. We retain some privacy, even in public. What is the source of this residual public-privacy, and how should the law recognize it without degrading the open character of public space?

The answer given by commentators, and most recently by the Supreme Court in Carpenter v. U.S., comes in the form of two related claims. The first is the chilling theory of the Fourth Amendment. According to this idea, …

Ending Cps Home Searches' Evasion Of The Fourth Amendment, Joshua Gupta-Kagan

Faculty Scholarship

Every year, Child Protective Service (CPS) agencies investigate about 3 million families around the country for alleged neglect or abuse of their children. Under agency policies, all of those millions of investigations include searches of families’ homes. CPS investigators knock on the door (usually unannounced), look in every room of the house, open kitchen cabinets, sometimes inspect children’s bodies, and generally look for any evidence of child maltreatment. Yet CPS agencies rarely seek a warrant, and typically act as if that is unnecessary. (P. 18 & n.86.)