Escaping Circularity: The Fourth Amendment and Property Law

João Marinotti

The Supreme Court’s “reasonable expectation of privacy” test under the Fourth Amendment has often been criticized as circular, and hence subjective and unpredictable. The Court is presumed to base its decisions on society’s expectations of privacy, while society’s expectations of privacy are themselves presumed to be based on the Court’s judgements. As a solution to this problem, property law has been repeatedly propounded as an allegedly independent, autonomous area of law from which the Supreme Court can glean reasonable expectations of privacy without falling back into tautological reasoning. Such an approach presupposes that property law is not itself circular. If it were, then property would be subject to the very same criticisms that plague the reasonable expectation of privacy test. The ubiquitous “bundle-of-sticks” interpretation of property law, however, is inherently circular. Therefore, this common realist analysis of property fails to offer a coherent solution to the Supreme Court’s doctrinal concerns. In spite of this, property law can nonetheless provide solutions to circularity when viewed through another lens. This Article applies the “New Private Law” research framework in the context of the Fourth Amendment and property law, thereby incorporating findings from cognitive science, sociology, and complex systems theory alongside doctrinal private law analyses. The Article demonstrates that an intensional definition of property, as well as of thinghood and possession, provides the necessary analytical tools to understand when and how property law can aid in avoiding circularity. Such a solution, however, would require that the realist approaches to property law—currently embraced by courts and legislatures—make way for a more nuanced vision informed by the growing interdisciplinary approaches to private law.