Fourth Amendment Commons^™

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Consensus And Conflict Over Context: Select Criminal Law And Procedure Cases From The Supreme Court's 2024-25 Term, Eve Brensike Primus, Elena Schultz

Articles

In its 2024-2025 Term, the Supreme Court emphasized the utility—and necessity—of context-based, fact-sensitive analyses throughout its criminal law and procedure cases. Though the Justices sparred over how to derive meaning from factual, structural, legal, and historical contexts, they tended to agree that courts should not be artificially restricted from considering the breadth of the record before them.

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Constitutional Law Application In The Sport Industry, Barbara Osborne

Marquette Sports Law Review

No abstract provided.

Facial Recognition Technology And The First Amendment, Joseph A. Tomain

Michigan Technology Law Review

The growing ubiquity of facial recognition technology (FRT) is a problem. While much has been written on harmful government use of FRT, little has been written about harmful use by private actors. This Article helps fill that gap in the literature by providing a detailed analysis of the First Amendment interests at stake when private actors use FRT. Specifically, this Article analyzes whether laws that limit the use of publicly available photographs to create “faceprints” for inclusion in FRT databases violate the First Amendment rights of the private actors creating these databases.

In May 2025, a multidistrict litigation against Clearview …

The Warrant Exception That Isn't: Fisa Section 702, "Defensive" Searches, And The Fourth Amendment, Noah C. Chauvin

Faculty Articles

Section 702 of the Foreign Intelligence Surveillance Act allows the government to conduct warrantless electronic surveillance of non-Americans who are located overseas. Although the surveillance targets foreigners, Americans' communications are "incidentally" collected, too. Once the government has acquired Americans' communications, court-approved rules allow it to conduct warrantless searches for and through them in its Section 702 databases. Intelligence agencies have used these rules to turn this foreign intelligence program into a domestic spying tool, conducting tens of thousands of warrantless "backdoor" searches for Americans' private communications obtained under Section 702 every year.

Section 702 periodically sunsets; Congress most recently reauthorized …

Katz'S Imperfect Circle: An Empirical Study Of Reasonable Expectations Of Privacy, Tonja Jacobi, Christopher Brett Jaeger

Faculty Articles

Under Katz v. United States, the Fourth Amendment restricts government actions that infringe upon expectations of privacy that society recognizes as reasonable. This foundational test has long been criticized as circular, both because courts can shape the very expectations they seek to identify through their decisions and because governments can manipulate those expectations to expand the reach of their own power. But how do members of society decide what expectations are reasonable, and how do judges ascertain those expectations? And are expectations of privacy malleable even without deliberate manipulation?

This Article shows that the circularity critique is both understated …

Caught In The Crosshairs: Predictive Policing And The Use Of Force, Matthew D. Zampa

University of San Francisco Law Review

No abstract provided.

The Evolution Of Surveillance And The Decline Of Privacy, Alan J. Geyer

Honors Undergraduate Theses

This study directly examines how surveillance law and technology have evolved in the United States and how privacy rights have declined correspondingly. The study specifically focuses on how advancements in surveillance technology have overstepped the boundaries of Fourth Amendment protections and analyzes whether these provisions are adequate for protecting citizens in the modern technological era. The study explores newly employed methods of technological surveillance, such as facial recognition, data collection, and automated license plate readers. It focuses on how government surveillance programs have reshaped legal and ethical understandings of privacy. The changes in surveillance and technology have been analyzed by …

“Digital Integrity”: Defending The Judicial Integrity In The Digital Age, Guy Alon, Doron Menashe, Guy Itzhak Sender

Touro Law Review

Recent revelations have shown that the protection of the Fourth Amendment in the digital age is inadequate. Despite well-known exclusionary rules regarding evidence obtained by illegal search and seizure, current trends in the digital age and the law of evidence resulted in courts that tend to include such evidence, and by doing so, create significant risk of both substantive and procedural errors and hence increase the potential for wrongful convictions. To address the matter and try to empower and modernize the protection given by the Fourth Amendment, this article suggests performing a revolution in the law of evidence in the …

Loopholes Of Liberty: The Supreme Court’S Evisceration Of The Fourth Amendment, David J. Looney

Touro Law Review

The Fourth Amendment’s protections against unwarranted government intrusion are currently undermined by the Supreme Court’s third party and open fields doctrines, which permit warrantless access to shared data and private land beyond a home’s curtilage, clashing with the Amendment’s aim to safeguard privacy and property in an era of advanced surveillance. These doctrines enable arbitrary governmental overreach, necessitating urgent review to restore constitutional protections. Rooted in Enlightenment principles, the Fourth Amendment historically protected “papers” and “effects” from physical trespass, as seen in Boyd v. United States. Katz v. United States introduced a “reasonable expectation of privacy” test, but its subjective …

Decentering Property In Fourth Amendment Law, Michael C. Pollack, Matthew Tokson

Articles

For the past several decades, privacy has been the primary conceptual foundation for Fourth Amendment search law. The canonical test for Fourth Amendment searches accordingly looks to whether the government has violated a person’s reasonable expectation of privacy. Yet privacy is no longer the sole determinant of Fourth Amendment protection, as the Supreme Court has recently added a property-based test to address cases involving physical intrusions on land or chattel. Further, given the ambiguity of the reasonable expectation of privacy test, a variety of influential judges and scholars have proposed relying primarily, or even exclusively, on property in determining the …

Office Intent And Excessive Force, John F. Preis

Law Faculty Publications

In the mayhem that often accompanies a police officer’s use of force, all manner of mistakes and miscalculations can occur. Suspects are accidentally shot, innocent bystanders are bitten by police dogs, and hostages are killed instead of their kidnappers. To what degree may persons harmed by police mistakes obtain relief through excessive force claims?

At present, the answer to this question is surprisingly uncertain. It is clear that an excessive force claim requires that an officer intend to seize the suspect, but it is far less clear whether the officer must also intend the nature and extent of force used …

The Fourth Amendment's Hidden Intrusion Doctrine, Laura Ginsberg Abelson

Faculty Journal Articles and Book Chapters

The Fourth Amendment’s concept of probable cause is the linchpin of legal standards governing law enforcement actions such as arrests, searches, and seizures. This article challenges the assumption that the same quantum of evidence can meet the probable cause standard regardless of whether law enforcement seek to conduct a search, to seize evidence, or to make an arrest, and regardless of the intrusiveness of such search or seizure. This paper demonstrates that the Supreme Court implicitly considers the degree of intrusion into privacy or liberty, not just the quantum or quality of evidence, when determining whether probable cause exists. In …

Free Movement Rights And The American City, Ryan Stoa

FIU Law Review

American cities are facing an inflection point. Widespread dissatisfaction with urban planning outcomes is making land use and transportation policies (such as congestion pricing) a mainstream topic of debate. Suburban sprawl and housing shortages are moving urban populations into the periphery, commuting times (and associated mental health problems) are increasing, and pedestrian and cyclist deaths caused by vehicles are at all-time highs. American cities that were largely planned and built in the twentieth century based on assumptions that we now know are flawed are not meeting the needs of their residents, and urban planners are making changes to reshape urban …

The Reality Of The Good Faith Exception, Matthew Tokson, Michael Gentithes

Utah Law Faculty Scholarship

The Fourth Amendment’s primary remedy is the exclusion of unlawfully obtained evidence at trial. But not every defendant whose rights are violated gets a remedy. The most substantial obstacle for defendants is the good faith exception, which directs courts to admit unlawfully collected evidence if the police can show they relied in good faith on existing authority. If the police rely on a statute that turns out to be unconstitutional, or a warrant or precedent that turns out to be invalid, the evidence they obtain will nonetheless be admitted under the good faith exception. The Supreme Court has justified this …

Facial Recognition Technology And The First Amendment, Joseph A. Tomain

Articles by Maurer Faculty

The growing ubiquity of facial recognition technology (FRT) is a problem. While much has been written on harmful government use of FRT, little has been written regarding harmful private actor use. This Article helps fill a gap in the literature by providing a detailed analysis of the First Amendment interests at stake when private actors use FRT. Specifically, this Article analyzes whether laws that limit the use of publicly available photographs to create faceprints for inclusion in FRT databases violate the First Amendment rights of private actors.

In May 2025, a multidistrict litigation against Clearview AI, an FRT company, offered …

Family Regulation's Consent Problem, Anna Arons

Faculty Publications

The home is the most protected space in constitutional law. But family regulation investigators conduct millions of home searches a year. Under pressure, parents nearly always consent to these state agents’ entry into the most private areas of their lives.

This Article identifies the coercive forces—not least the threat of family separation—that drive parents to consent to home searches. Drawing on primary sources and case law examining consent in criminal cases, it shows that common family regulation investigation tactics render consent involuntary and the ensuing searches unconstitutional. And yet, it argues, the Constitution is not enough. Though constitutional litigation could …

Byte By Byte: Breaking Down The Third-Party Doctrine And Reproductive Health Apps After Dobbs, Travis Handler

Oklahoma Law Review

No abstract provided.

State V. Sweatt: An Examination Of The Current Confusion In Fourth Amendment Standing, John Archer Hobson

Maine Law Review

In State v. Sweatt the Maine Law Court held that an owner of gems being sold on consignment in a third party's store has standing under the fourth amendment to contest the seizure of the gems. The movants in Sweatt were the targets of several police searches during October and November of 1980. During these searches the police seized tourmaline gemstones which were alleged to have been stolen from Dale Sweatt's former business partner, and miscellaneous personal items belonging to the Sweatts. Subsequently, the Sweatts moved for suppression and return of all these articles. The superior court granted the movants' …

Utah V. Strieff And Teaching Analysis, Lisa A. Tucker

St. John's Law Review

(Excerpt)

In Utah v. Strieff, the Supreme Court considered whether the Fourth Amendment required suppression of evidence obtained in an unlawful investigatory stop when police discovered that the person stopped was subject to lawful arrest based on an unrelated outstanding warrant. The majority opinion, written by Justice Clarence Thomas, held that suppression was not required in such a case; the dissent by Justice Sotomayor argued that it should be.

These two legal opinions took jarringly different approaches to determining a question of law, one that disproportionately impacts people of color, who are statistically most likely to be unlawfully stopped …

After The Age Of Discretion: Policing And Privacy In A World Of Automated Roadway Enforcement, Trayce Hockstad, Lawrence Cappello

St. John's Law Review

(Excerpt)

Our Fourth Amendment attempts to harmonize in fifty-eight words the tenuous, antagonistic relationship between privacy and public safety. These two values appear to be deadlocked in a contentious legal orbit, leaving behind them a trail of fascinating but foreboding jurisprudence in American law. The fundamental need of individuals for spaces of seclusion from government surveillance has endured a slow siphoning of its constitutional protection by the encroaching definition of the “public” and the perceived need to police every person and place that may be considered so. Nowhere has this proven truer than our nation’s roadways. As the judicial system …

Policing Emotions: What Social Psychology Can Teach Fourth Amendment Doctrine, Wayne A. Logan

Buffalo Law Review

No abstract provided.

Imperfect Protection Against Perfect Enforcement: When Procedure Is Not Enough, William S. Fallon

Connecticut Law Review

Government technology that exclusively detects illegal conduct is per se constitutional. Today, the Fourth Amendment provides no protection—zero—against government technology that identifies illegality without also revealing private, innocent behavior.

Meanwhile, alarmingly, government is rapidly developing—and deploying— technology that bypasses the need to examine private, innocent behavior in its detection of wrongdoing. Government can know there is contraband in your bedroom drawer without the need to rummage through that drawer, your home, or any of your private information and possessions. Government can know there is illegal content on your phone without the need to search through that phone or any of …

Will Bruen Kill Cops?, Peter N. Salib, Guha Krishnamurthi

Fordham Law Review Online

Criminal procedure is a balancing act. On one hand, it must allow law enforcement officers to protect the public and themselves. On the other hand, criminal procedure must safeguard citizens’ individual constitutional rights—privacy, physical liberty, and bodily integrity. And now, the right to bear arms.

There is a serious tension here. Landmark Fourth Amendment cases like Terry v. Ohio, Pennsylvania v. Mimms, and Chimel v. California give the police wide latitude to seize firearms on the assumption that guns are dangerous. But these doctrines largely evolved before the Second Amendment’s ascendance. In District of Columbia v. Heller, …

What's Love Got To Do With It? Davis V. Henderson And A Proposed Revision To Mississippi's Termination Of Child Support Standard, Maddie Woodhead

MC Law Review

No abstract provided.

Egbert V. Boule And The Dwindling Bivens Doctrine, Luke Smith

MC Law Review

No abstract provided.