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The Fourth Amendment is a mirage. On paper--in the rules studied by law students, analyzed by scholars, and proclaimed by jurists--its limitations are many and, oftentimes, significant. Yet the experience of large numbers of Americans is entirely to the contrary, thanks to the rights-annihilating, under-theorized exception of "consent." Under its guise, law enforcement officers routinely conduct what would otherwise be constitutionally-restrained searches and seizures, and they do so without meaningful explanation or assent. Fortunately, change--whether legislative or (ideally) constitutional--could be straightforward. Thanks to other sufficient triggers, consent could be replaced by a narrow, rights-protective doctrine under which law enforcement could continue to accomplish its aims--and in a more fair and evenhanded manner--and that would produce public data that could be mined for evidence of bias or manipulation. In this Article, then, we make the case for the abolition of Fourth Amendment consent except as an emergency doctrine, a move that would improve policing and restore an intended measure of human dignity and autonomy to the people. [ABSTRACT FROM AUTHOR]

The last decade has brought tremendous change to the Fourth Amendment, finally resulting in a 'digital is different' norm. We stand at an inflection point between a monolithic, analog past and a murky future ofyet-unarticulated constitutional digital policing rules. It is a good time, then, to reflect upon how we came to be here and where we ought to go. This Essay.first looks back to a monumental, majestic dissent: that OfJustice Louis Brandeis in the 1928 decision ofOlmstead v. United States. Every American, and especially every law student, ought to know that opinion, and judges and scholars ought to appreciate how it charted the path we have now trod. The Essay then turns forward, considering whether we are finally ready for a longstanding Supreme Court assertion that has never been honestly applied: a Fourth Amendment warrant default. Given ubiquitous digital data, a warrant standard will often be required for searches to be reasonable. And, even when it is not-when the needs of effective investigation and resulting safety outweigh privacy and liberty concerns-the modern Fourth Amendment space is uniquely well situated to a 'penalty default' in which the State shoulders the burden of convincing legislators and then courts that such lesser standard is constitutionally correct. [ABSTRACT FROM AUTHOR]

Juries are the lifeblood of our criminal justice system. As the Framers clearly understood, and as the Supreme Court has consistently reaffirmed in recent years, their value goes far beyond accuracy in individual cases. Criminal juries are a democratic bulwark against overzealous state power; they keep prosecutors and police in check. Accordingly, the disappearance of traditional criminal trials is not just a problem for individual defendants. It is a problem for all of us. In this Article, we propose a novel mechanism to (partly) restore the criminal jury to its rightful pride of place--a trial lottery. In short, a small percentage of cases that plead out should be randomly selected for jury trial notwithstanding the plea, using the plea's terms as an upper limit on punishment. Such a system of lottery trials would yield three systemic benefits. First, it would counteract asymmetries in plea negotiations, leading to a more level field of bargaining. Second, it would 'audit' the law enforcement process, revealing patterns and irregularities in how police investigate and how prosecutors charge. Third, it would revitalize the role of jurors, lawyers, and judges in criminal adjudication. A trial lottery could thus restore a measure of accountability and democratic spirit to criminal justice systems that increasingly feel distressingly void of both. [ABSTRACT FROM AUTHOR]

We finally have a federal 'test case.' In Carpenter v. United States, the Supreme Court is poised to set the direction of the Fourth Amendment in the digital age. The case squarely presents how the twentieth-century third party doctrine will fare in contemporary times, and the stakes could not be higher. This Article reviews the Carpenter case and how it fits within the greater discussion of the Fourth Amendment third party doctrine and location surveillance, and I express a hope that the Court will be both a bit ambitious and a good measure cautious. As for ambition, the Court must recognize that the fundamental liberty protected by the Fourth Amendment--the right to be "secure in [our] persons, houses, papers, and effects"--is squarely at issue when the government seeks to track our longer term movements, whether historically or prospectively. It is not business records, beepers, automobiles, phones, cameras, drones, or some other coincidental medium or technology that is at issue: it is our constitutionally protected liberty. Thus, the Court should hold that law enforcement acquisition of longer term cell site location information (CSLI) constitutes a Fourth Amendment search, ending the monolithic, anachronistic third party doctrine. As to the precise durational trigger and as to what particular law enforcement restraint would be correspondingly reasonable, the Court should be cautious, as it was in United States v. Jones and Grady v. North Carolina. It will have taken the better part of a half century to undo the Court's expansive third-party declaration in United States v. Miller, an unnecessary overreach best relegated to history. Thus, while the Court should not abandon Fourth Amendment development through reasonable reliance, it should remand these constitutional determinations for lower court development. Those courts should consider not only Fourth Amendment precedents, but also how state supreme courts have independently interpreted their own constitutions. [ABSTRACT FROM AUTHOR]

The FAA Modernization and Reform Act of 2012 requires the Federal Aviation Administration to integrate unmanned aerial vehicles (UAVs), or drones, into the national airspace system by September 2015. Yet perhaps because of their chilling accuracy in targeted killings abroad, perhaps because of an increasing consciousness of diminishing privacy more generally, and perhaps simply because of a fear of the unknown, divergent UAV-restrictive legislation has been proposed in Congress and enacted in a number of states. Given UAV utility and cost-effectiveness over a vast range of tasks, however, widespread commercial use ultimately seems certain. Consequently, it is imperative to understand the constitutional restraints on public flight and constitutional protections afforded to private flight. Unfortunately, although there are a few Fourth Amendment precedents in manned aviation, they are mired not only in 1980s technology but also in the 1980s third party doctrine, and therefore do not reflect more recent Fourth Amendment developments and doctrinal fissures. There is also considerable uncertainty over First Amendment protection of information-gathering--for example, is there a right to record? Further, there is no judicial or scholarly analysis of how UAV flight fits within contemporary First Amendment forum doctrine, a framework that provides a useful starting point for analyzing speech restrictions in government-controlled airspace, but that comes with some uncertainties of its own. It is into this thicket that we dive, and fortunately some clarity emerges. Although the Fourth Amendment third party doctrine hopelessly misunderstands privacy and therefore under-protects our security and liberty interests, the Supreme Court's manned flyover cases can be mined for a sensible public disclosure doctrine that seems agnostic as to the various Fourth Amendment conceptions: we do not typically require only law enforcement to shield its eyes. Of course, both constitutions and legislation can place special restrictions upon law enforcement, and sometimes doing so makes good sense. But as a general Fourth Amendment matter, the officer may do and see as the citizen would. Hence to understand Fourth Amendment regulation, we must understand how the First Amendment limits government restraint on speech-relevant private UAV flight. Here we analyze the developing right to record and apply contemporary forum doctrine to this novel means of speech and information-gathering. If navigable airspace is treated as a limited public forum, as we propose with some qualification, then the Federal Aviation Administration will have significant--though not unlimited--regulatory leeway to evenhandedly burden speech-related UAV activities where doing so would reasonably promote safe unmanned and manned flight operations. The Agency, however, would likely need further congressional action before it can restrict UAV flight based on privacy rather than safety concerns. As the legality and norms of private flight correspondingly take shape, they will inform Fourth Amendment restrictions on government use. [ABSTRACT FROM AUTHOR]

In late 2014, two grand, juries returned controversial no bill decisions in police killings, one in Ferguson, Missouri, and one in New York City. These outcomes have renewed calls for grand jury reform, and whatever one thinks of these particular processes and outcomes, such reform is long overdue. One logical source of reform to better respect privacy in records, which would have incidental benefits beyond this privacy focus, would be the newly enacted American Bar Association Standards for Criminal Justice on Law Enforcement Access to Third Party Records (LEATPR). But LEATPR exempts from its requirements access to records via a grand jury subpoena, and, perhaps more surprisingly, potentially exempts access via a "functionally equivalent prosecutorial subpoena." The impetus for this exemption was a concern that applying LEATPR's requirements to the grand jury, or even to its functional equivalent, is unnecessary and might radically undermine longstanding systems of criminal investigation in perhaps unforeseeable ways. This Article addresses whether this exception can be justified by reviewing each of the four main regulatory mechanisms of LEATPR and examining whether grand jury procedures provide an adequate substitute. In finding that they do not, this Article indicates how to improve the grand jury process. These improvements would of course not resolve the very difficult and multifaceted social ills reflected in the controversy over recent grand jury decisions, but they could begin to restore the legitimacy of this once-revered but now-maligned institution. [ABSTRACT FROM AUTHOR]

Given increasing criticism and dropping admissions, American legal education is likely to change, hopefully reversing the unsustainable trend of increasing expense without increasing value. Much debate focuses on restructuring the curriculum to make it more "practical" and skills-infused; here we instead propose a rethinking of the basic unit of law teaching, the casebook. Casebook authors and publishers are cautiously venturing into electronic editions, but they fail to harness the power of social learning to make textbooks dramatically smarter as well as cheaper. We are developing an online platform that reinvents both authorship and learning. The platform, which has progressed to alpha testing, provides an online system for crowdsourcing authorship by law professors (including shared and socially ranked case selections, edits, annotations, questions, and problems) and reading by law students and others (including shared and socially ranked highlights, notes, questions, answers, and other interactions, as well as live collaboration). Rather than settle for twentieth century casebooks in digital form, we aim to enable twentyfirst century coursebooks that originate in, and then grow increasingly useful and valuable through, social intelligence. [ABSTRACT FROM AUTHOR]

The article offers information on the legal significance of a set of Criminal Justice Standards related to Law Enforcement Access to Third Party Records (LEATPR Standards) drafted by the task force of the American Bar Association's (ABAs) Criminal Justice Standards Committee in 2006. It discusses the role of the Federal Bureau of Investigation, the National Association of Criminal Defense Lawyers, and the U.S. Department of Justice in the drafting of the ABA Standards for Criminal Justice.

An obituary for Andrew E. Taslitz, law professor at the American University Washington College of Law, is presented.

In United States v. Jones, the government took an extreme position: so far as the federal Constitution is concerned, law enforcement can surreptitiously electronically track the movements of any American over the course of an entire month without cause or restraint. According to the government, whether the surveillance is for good reason, invidious reason, or no reason, the Fourth Amendment is not implicated. Fortunately, the Supreme Court unanimously rejected that position. The Court did not, however, resolve what restriction or restraint the Fourth Amendment places upon location surveillance, reflecting proper judicial restraint in this nuanced and difficult area. Using the newly enacted American Bar Association (ABA) Standards on Law Enforcement Access to Third Party Records, this Article develops a regulatory regime for law enforcement visual surveillance, technologically enhanced location surveillance, and access to historic location records (e.g., cell site data). The proposal handles the administrative difficulties inherent in so-called mosaic approaches via a generally permissive regime regulated through an abuse standard. Ideally, such a proposal would be legislatively enacted with the backdrop of constitutional judicial review, and the Article comments upon the need for constructive dialogue and initiative in that process by the law enforcement community, a view influenced by six years serving as Reporter for the ABA Standards. [ABSTRACT FROM AUTHOR]

In this article, the author discusses the law governing the privacy in social media. He discusses the history of social media along with the theory of information privacy and the needs for improvements. He discusses that the American Bar Association (ABA) Criminal Justice Standards on Law Enforcement Access to Third Party Records can be used by legislatures and other decision makers to regulate access to social media information.

The article focuses on the concept of move on (MO) order, in which the government, either via legislation or purely executive action, does not detain a person, the prototypical imposition on liberty, but instead requires that a person not occupy a certain space. The government requires that a person move on from his or her current location, be it a park bench or an apartment, but does not otherwise restrict that person's continued freedom of movement. It is noted that MO orders are not Fourth Amendment seizure of the person.