My New Elements Outline

I. Common Law Method: Precedent, Formalism, Legal Realism [Completely Indeterminate] -------------------------------------------------------------------------------- [Completely Determinate] [Realism] [Formalism] Holmes Langdell Cardozo Burke - There can be many outcomes to a legal question - There is one right answer to a legal question Realists – more flexible – standard followers  Holmes – Social Science o Bad if rationale for rule is gone, but continues b/c we’re just imitating the past out of “tradition” o Focus on the experience of each case - though precedent can work, the law doesn’t bind judges. o Law should be focused on why decisions were made in the past, see if they apply today. o Bad Man – morality doesn’t deter him, but law might – so create law based on what the bad man will do [law v. morality] o Focus on prediction – precedent doesn’t shape society  Cohen – Transcendental Nonsense o Law is not a science, it is a practical activity. o Law doesn’t focus on social factors but rather on technicalities that aren’t that important – too much logic = nonsense!  Llewlyn – Lost Lawyer o Judicial creativity is constrained by rules and traditions – these give rise to interpretation. o “Craft” idea  Not science (not systematic enough), but more room for judgment and creativity.  Not art (no function in art) – there has to be function in craft! o Law is a craft  Not precise, implicit & community-shared knowledge  Cannot be boiled down to one principle  No algorithm to make decisions  Bad side – mystification is inevitable, public cannot understand without legal experience. In-Between Realism and Formalism  Cardozo – Nature of Judicial Process – formalism and functionalism o Retrospective re-characterization – we can explain the results of the past with new theory than old. o Judges have discretion, but there is a limit to how much freedom they have  [following precedent should be rule, only in exceptional cases we break from precedent] o Don’t fully rely on precedent but it can be controlling and useful for cases  If abandon precedent  judicial anarchy o What shapes progress of law: logic, history, custom, accepted standards of right conduct, morality  Dworkin – Chain Novel one best answer to every case. o Don’t invent law – look for principles that fit and justify complex part of legal practice  Horizontal consistency of principles across range of legal standards o 2 questions to ask for each legal question –  1. FIT/INTERNAL: Have to decide what will fit given what is provided before  2. BEST OPTION/EXTERNAL: Given the circumstances, find B.O – there may be more than one correct answer, but there is a line distinguishing correct and incorrect interpretations o Balance of judicial constraint, but also allows for some creativity. Formalists – less flexible – rule followers  Burke – Incrementalism in Precedent o Precedent’s importance: inherit rights from our past, societies rely on and build on a foundation o Take the difference between holding and dicta – minimalism – do as little of this as possible. o Common law changes are incremental – past wisdom applied to present o Reasons to respect precedent  1. Legitimacy: people respect law and unelected judges if respect precedent

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2. Accuracy: knowledge in pre-existing decisions might have info. content 3. Distrust of Abstract 4. Information: if sth has been certain for a long time, it is probably working relatively well 5. Law of unintended consequences: w/o rules, leads to uncertainty/instability – not certain that drastic change will lead to better result than incremental change. 6. Wisdom of crowds: judges of past gen. (crowd), collectively have incrementally created better changes than working individually.

Follow Precedent Discretion is only needed at the margins – in extreme cases. Judicial restraint – operational test of the truth Fairness – treat cases the same Laws must be predictable – slippery slope to chaos To many exceptions guts the rule The more complicated the web of rules and exceptions, the less likely judges apply correctly

Not Follow Precedent Judges should have discretion to do justice where the rule demands a different result The rule may be outdated/situations have change Rule would produce unjust result Discretion is inevitable, so why pretend to follow precedent Fluctuating law, cannot apply old rule Old rule actually wasn’t being applied – different rule was! Rules are impossible to apply

II. Statutory Interpretation LIBERAL TEXTUALISTS Start with text, consider other evidence (ambig., error)

LIBERAL INTENTIONALISTS Only intent // Start w. text, always consider other evidence 

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SEVERE TEXTUALISTS Consider only text in all situations, interpret literally

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SEVERE INTENTIONALISTS Start w. text, look @ intent 2 avoid absurd&ambig.

How do we interpret the text? o Exclusio unius – excluding items from the list implies that they aren’t covered by the statute  E.g. Church of Holy Trinity – pastor isn’t included in the traders that can be imported! o What does the text say? o Should we look at other materials?  Legislative history  Committee reports  To what extent???? How much weight does the text deserve? o Textualists – all weight, unless there’s an absurd result from using the common interpretation. ADVANTAGES OF TEXTUALISM o Restrain judges  Scalia – judges don’t make law, should rely on text.  Judges are not elected officials; only scrivener’s errors should be interpreted by court.  Prevents judges from changing law at their own bias, whim  Appearance of fairness – just following the law! (not interpreting the law) o Discipline legislature  Force them to make non-ambiguous statements  Congress should fix laws – this is better than giving that job to judges o Best evidence of intent – look at plain language o Predictable interpretation – good for lawyers & citizens. ADVANTAGES OF INTENTIONALISM [being a good agent of the legislature] o Speaker’s meaning – need to find out what the speaker was intending by what they said  Riggs – legislature probably doesn’t want murder’s to get inheritance. o We want to avoid absurd results!  Sometimes the most textual interpretation leads to absurdity. o More sophisticated understanding of legislative politics  Interest group theory/public choice– smaller groups are more effective in lobbying to mobilize legislation, create laws that hurt majority to benefit the minority  Statutes can be products of deals btwn. Legislators and small interest groups – product of money and power – perhaps diverge from public interest  Limited # of members, member is limited to vote on issues that they more care about  Committees are less representative of population, gives interest groups more power through legislatures  Big groups – collective action problems (hard to mobilize, diffuse interest)  Courts should be cognizant of these facts and protect the public  Arrow’s Theorem – cycling makes the idea of public interest “meaningless”  sometimes the law doesn’t represent the will of the legislature – means that it doesn’t represent the will of the people o we might not know in which case the will is expressed or not.  Legislative outcomes are unrelated to preferences, majority rule becomes meaningless.  If statutes say nothing about the purpose, then hard to resolve ambiguities.  Cycling – different outcome each time, preferences aren’t always transitive o Faithful agent – legislature wants court to use judgment to avoid absurd results  Example – assistant selling Monet painting example o Cheaper – mistakes are going to happen, cost effective for courts to correct mistakes on back-end  more costly to legislature on front end to try and think of every situation that arise from enacting

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Disuse – randomly enforcing statutes that exist but aren’t enforced doesn’t seem fair Easterbrook (hybrid) – general v. private interest law  First, determine if a statute is general or specific  Specific: result of compromise, no identifiable purpose; private interest law  General, clear purpose: judicial freedom to interpret the best outcome for each case. How to be good intentionalist  Look at various materials to determine the true purpose of legislature  Legislative history  committee notes  debate records  drafts & comments  What’s the context? – what problem was the legislature actually trying to solve?  Church of Holy Trinity – we wanted to stop forced labor from coming into the U.S., not trying to ban pastors from coming in.

Cases  TVA v. Hill o [TEXTUALIST] Majority – purpose of Endangered Species Act to conserve species that are of incalculable value  Legislative history indicates saving species is national policy, first priority  There must be reason why legislature didn’t put in an exception to the rule!  Once meaning discerned & constitutionality determined, judicial system comes to end. o [INTENTIONALSIT] Minority – leads to absurd consequence (shutting down million dollars project); the Act didn’t mean to halt projects that were already in construction when the Act was enacted.  Legislature didn’t intend this sort of consequence.  Interpretation of “action” – new action (future projects) or old action (projects begun)?  Church of Holy Trinity v. U.S. o [INTENTIONALIST] Majority – purpose of Immigration Act was to prevent migrant workers  We should always think legislature intended exceptions to its language to avoid absurd consequences.  History – act intended to expel evil surrounding unfair labor practices in early U.S.  Church didn’t violate the intent/purpose of the act – therefore okay to bring Pastor.  Riggs v. Palmer o [INTENTIONALIST] Majority – the legislature did not intend for murderer to get money – principle of justice that one cannot benefit from his crimes. Textualism 1. Restraint on Judges (similar to rules) 2. Discipline legislator: penalty default – should have made rules clearer! 3. Best evidence of intent: if majority of time text reflects intent, purpose driven approach might get statute’s intent wrong 4. Incoherence: difficult to determine a group’s intent than an individual’s intent 5. Bargain: possible that there were different compromises legislature made in creating statute

Purpose Analysis 1. Speaker’s meaning: interpreting (not re-writing) statute to seek author’s intent 2. Meaning to parties dependent on the context/the era during which statute enacted 3. Faithful agent: legislature wants courts to use discretion to avoid absurd results 4. Cheaper: legislature not always able to perceive problems that may result from not including each term 5. Legislative inertia: problems may be inevitable, legislature has other things to think about, better to find other agent’s to fix problems that may arise.

III. Rules v. Standards RULES  More binding to the facts, less discretion, captures the background principle/policy  Rules are more constraining and determinate than standards

STANDARD  Decreases error of over- and under-inclusiveness  Gives more discretion, includes all relevant factors, different decision produced from different cases

ADVANTAGES OF RULES 1. Easier for regulated party to know how to comply a. More predictable, clear in advance, better at controlling parties and providing good deterrence when we want people to act in a certain way i. Papachristou (vagrancy) – the vague standard gave too much power to police to use discretion in arresting people (erratic arrests, cut against disenfranchised groups) 2. Easier for regulator (police/state) to apply the rule 3. Gives regulator (police/state) less discretion 4. Less likely to be used arbitrarily 5. Aids courts in resisting immediate public pressure a. Blame the outcome on the rule 6. Easier for public to know that regulator was unbiased a. Removes police/judge from blame 7. Rules are less costly to enforce a. No need to have individualized hearings b. But may perhaps lead to less just results DISADVANTAGES OF RULES 1. Expensive to create ex ante a. Have to consider all facts in all possible situations, and extract the most important fact b. Standards allow for incremental learning and evolution – no huge upfront requirement 2. Drives discretion underground a. Speeding Example – 90% of people violate speed limit, what’s the justification for pulling over the 1 car in the highway? There must be another reason why! b. If massive rule violation – just as much discretion as a standard, but façade of rule! 3. Roadmap for evasion – McAleer c. Standards don’t allow people to tip-toe up to the line; because parties are unsure, it creates a buffer zone i. If people don’t know how much lying constitutes “fraud” they will over-deter and lie less. d. De-incentivizes people from trying to play the system LIST     

Potential for abuse Precision/notice Blame/accountability Uncertainty/conflict Costs

RULES GOOD Prevent unfair surprises; Restrict arbitrary and discretionary enforcement Saves administration costs appearance of equal treatment Predictability Judicial restraint, judicial independence.

STANDARDS GOOD Rules are over/under inclusive - inaccurate Drive discretion underground Roadmap for evasion Rules require a lot of information – expensive to create

IV. Autonomy & Efficiency: Freedom of Contract, Market Failure, Coase Lochner v. NY (Baker)  No reason to interfere with freedom of contract (having a job > no job) o Are contracts a form of coercion? o Any job can be considered dangerous – courts have to draw a line – slippery slope argument Surrogate Parenting v. KY (surrogacy/parental rights case)  Freedom to contract – father and surrogate mother have parental rights – equal bargaining power  Statutory interpretation – both majority and dissent use leg. history/intent to support rationale – problem of which interpretation is correct! MARKET FAILURES AS JUSTIFICATION FOR REGULATION 1. Capacity – not everyone has the capacity to make contracts to look after their own interests [paternalism] a. Children, people with mental issues, avoiding pressure situations (people coming into your home to make you buy something…) 2. Externalities – thinking about 3rd party effects; people are affected by decisions that they don’t consent to a. Single owner rule – create outcomes if everything was owned by single person (WWOSD) i. Increases wealth and efficiency – RELATES TO COASE b. Moralisms – things that make people unhappy, harm to society from something it deems immoral i. Commodification of humans – SPA v. Kentucky, “commodification of babies” ii. Preferences aren’t exactly moralisms iii. Me being concerned about others 3. Monopoly – distortions in the market that occur 4. Unequal bargaining power – people can get taken advantage of/exploited a. Most things involve unequal bargaining power, but if there’s competition of choice then it’s oaky. i. There must be a breakdown of competition along with unequal power. 5. Information problems – people are not informed enough to make the right decisions for themselves a. Solution – government can give people more information if there’s an information problem instead of stepping in and interfering with contracts [counter – what is the point of “sufficient information”?] b. Counter – people still might not make the best choice because of self-serving bias. 6. Bounded Rationality a. Optimism – people tend to believe things that make them better off b. Overconfidence 7. Bounded Self-Control – a. High discount rates – benefit of now is more important than benefit of future i. Justified if future isn’t secure, or if the future isn’t as worth as much as present ii. Self paternalism – eliminate the irrational choice b. Inconsistent discount rates – sometimes you value now more than future; sometimes you value future more than now. 8. Prisoner’s dilemma – even if everyone works for own benefit, the greatest overall outcome doesn’t happen; a. REQUIREMENTS OF TRADITIONAL PD

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Each player has a dominant strategy that is best regardless of what the other player does. One-shot deal. Assume that each prisoner only cares about his own punishment (no altruism) Result – the inevitable outcome (defect/defect) is worse for each prisoner than the other (better) possible outcome (cooperate/cooperate) [both cooperate – pareto efficient outcome]

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b. If the government didn’t get involved, then selfish rationality of humans would lead to a less-perfect outcome. Government can shift the result to one that is the collective good. c. Pursuing our own interests (rationality) leads us to make decisions that are collectively bad – argument for government interference? d. Repeated interactions – possible to get cooperation until the very last move –no need for govt. interf. i. Neighbors and painting – if my first choice is to cooperate, then maybe my neighbor will also cooperate – cooperation is possible if there are not high discount rates (less uncertainty of the future  greater cooperation) 1. Establishing reputation Conley – Coercive paternalism is better than libertarian paternalism (manipulating and nudging people in the “right” direction) because at least we get the desired outcome (e.g. ban smoking)

FOR AUTONOMY/ANTIPATERNALISM 1. Autonomy – it is a fundamental right to human beings, shouldn’t restrict people’s right to autonomy 2. Consequentialist argument – contracts have a mutual advantage, it would be wasteful to interfere in contract 3. Alternatives to limiting contracts a. If you’re concerned about public welfare, create regulations and enforce them! 4. Risk by choice – if people have information and have calculated risks, people should have freedom to choose decisions to make risks in return for contracts that reflect those risks a. Counter-arg: information asymmetric/not enough problems 5. Knowledge – people know their own preferences/own interests the best, therefore freedom of contract provides the best outcomes for people a. John Stuart Mill – you care about your own welfare and have most info more than anyone else i. Ex ante, you have more knowledge about yourself than anyone else. 6. Paternalism – demeans human beings because it assumes individuals cant make good choices, dis-incentivizes people to make good decisions because they have someone else (govt.) to fall back on. 7. Slippery slope – small limitations can lead to greater limitations down the road 8. Hayek – economic benefit for allowing people to take own risks and make mistakes a. We don’t fully understand the systems that we have in place b. Want people to have freedom to act in risky ways in order for innovations to occur c. If we limit what an individual can do, that may have unintended consequences. d. Markets can solve informational problems Public Good – goods that are non rivalrous (my use doesn’t affect your use) and non excludable (not preventing another from enjoining the benefits)  Non-excludable: individuals can’t be excluded from use  Non-rivalrous: use by one individual doesn’t reduce availability to others o Ex. Fireworks – impossible to prevent people from viewing the fireworks; individual using fireworks doesn’t reduce its availability to others o Ex. Lighthouses – you cant block light; one person using the light emitted doesn’t reduce usage of the light to others.  Problems with public good o Free-rider– people who don’t pay for the good may continue to access/use it. o Public good creates positive externalities that public doesn’t compensate o Markets usually undersupply these types of public goods. o Govt. regulation is necessary – taxes, subsidies, charities, norms Coase Theorem Theory: no transaction costs, rights naturally flow into the hands of whoever will pay the most b/c parties bargain for the most efficient outcome; no need for law because parties will figure out what is the most valuable on their own.  Gravitate towards the highest joint surplus. Transactions costs  Because of the Coase theorem, the law should try to lower transaction costs o Clearly stating rights of parties, creating defaults in contracts  Whenever low transaction costs, the most valued end state is reached

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If there are high transaction costs, legal rules matter o No remedy or injunctions work sometimes or not o Damages rule works all of the time in theory because it mimics bargaining  Problem – measuring damages incorrectly  inefficient outcomes. Sometimes, the entire shutdown of a party is the best solution if the other side has so much value

Barriers to bargaining 1. Multiple parties – more parties = higher transactions costs, holdout problems, harder to coordinate 2. Collective Action Problem – fear of free riding, some groups will hold out to free-ride. a. Solution – legal rule to require everyone to chip in for the contract to be enforceable 3. Externalities – external costs v. benefits a. Opportunity cost (the cost I lose by coming to law school than working; turning down $25 to clean room) b. If we bargain, and I accept offer, then offer value > my benefit from causing harm c. If we bargain, and I decline offer, then my benefit from causing harm > offer value ; means its efficient to cause harm d. If TC=0, remaining externalities are those in which benefit of harm > cost (e.g. it is efficient) Critiques of Coase Theorem 1. Incommensurability [not having the same standard to judge things on] o Sometimes we cant assign money values to certain things – emotions, feelings, etc. o What is the true cost of some things? Can we know? 2. The Willingness of Pay ≠ Willingness to Accept o Willingness to Accept = amt. a person is willing to accept to abandon good, or put up with sth. negative. o Willingness to Pay = max. amt. person is willing to sacrifice to procure good, or avoid sth. negative. o People value things they own >> than when they don’t have it o Wealth effects – if something makes you wealthy, you will have a higher cost to give it up than to pay and receive it (clean water, healthcare) o Endowment effect – people tend to value things just by the virtue that they own it 3. Emotional Costs o After lawsuits parties detest each other and would be reluctant to bargain 4. People don’t know the legal rules in place & just control behavior based on the environment they are in o Coase may only work in cases where the stakes are high and the parties are sophisticated

V. Egalitariansim – Equal Protection Elster: Adaptive Preferences – when we think we can’t have something, we adapt our preferences downwards.  Critique of economic theory o Economists think that markets are the best in satisfying individual preferences. o But what if people downgrade their preferences because we think we cannot attain them (therefore not satisfying their true preferences)? o Preferences don’t count when you adapt downward to unjust circumstances  But its okay to adjust your preferences upward  What are the preferences people want under better circumstances? Standards of Review [what’s the motivation for distinguishing among different people??]  Rational basis scrutiny o Govt. classification is reasonably related to achieving a legitimate government interest  Legitimate state/govt. interest  Reasonably related to end that is sought  Strict scrutiny o Govt. classification serves compelling state interest and tailored to the ends  Means narrowly tailored to meet end  Compelling end that is sought Compelling >> Substantial >> Legitimate

Pyler v. Doe  Texas statute deny free public education to illegal immigrant children violates the 14th amendment  Strict Scrutiny test o Govt classification involves “suspect class” - race, national origin o Infringes on fundamental right o Compelling state interest and means are narrowly tailored to that interest  Uses intermediate scrutiny in this case o Substantial state interest, focusing on the legitimate ends of the state  not allowing education to children of illegals doesn’t achieve dis-incentivizing influx of illegals  state’s idea – children will leave state, not contribute to economy (bad argument)  focus on consequences of classification, rather than motivation San Antonio v. Rodriguez  Allocating public school funding on property taxes doesn’t violate the 14th amendment o Education isn’t fundamental right o “Poor” isn’t suspect class o Survives rational basis scrutiny  E.g. legitimate state interest that reasonably relates to ends.

Rawls – Veil of Ignorance [PROCEDURALIST]  Ultimate ex ante position – rational human being with no race/gender/etc. o Original position – what people would agree to not knowing their societal position.  Come up with social principles that society will agree to  Morally arbitrary facts – things that we are born with, not necessarily deserved  ability to succeed based on something that we didn’t earn. o In the original position, we would want to constrain the effect morally arbitrary fact have on people’s outcomes in life. Rawls – Principles of Justice  Same indefensible right to basic liberties o Fair value – not “formal/façade equality” but substantive/practical equality  Social/economic inequalities are permitted BUT o Present inequalities must be to the greatest benefit of least advantaged  Improve the state of the least well off person Nozick [CONSEQUENTIALIST]  Just acquisition + just factors = just outcome  There is nothing unjust in owning what you were born with, thus nothing unjust in using your facilities  Why is Rawls so risk averse o Nozick more of a utilitarian: maximize the efficiency, maximize wealth – we can figure out distributional problems later! Nussbaum – Capabilities  10 capabilities of what is necessary to live a dignified life  Should be provided at a minimal level (no need to be equal, just above a certain threshold).

I. Development of the Common Law example: evolution of privity rule A. Winterbottom v. Wright (1842) (latent defect in coach) 1. Rule: If plaintiff does not have privity of contract with manufacturer, he cannot sue the manufacturer for negligence 2. Facts: Defendant contracts with Postmaster General (to supply coaches and to maintain them), Atkinson contracts with Postmaster General (to supply horses and drivers for the coaches). Winterbottom contracts with Atkinson (to be a driver). Winterbottom is injured because of a latent defect in the coach. There is not privity of contract between Winterbottom and Wright 3. Limited to unintentional injuries; court decides the rule to limit an "infinity of actions," i.e. liability many years after manufacture of coach, person walking down the road who's injured when the coach breaks 4. Possible exceptions to privity rule: Intentional torts; public duty or public nuisance B. Longmeid v. Holliday (1851) (Exploding lamp) 1. Rule: If there is no privity of contract, one cannot be held liable for negligence if he acted in good faith. 2. Exceptions to privity rule: Inherently dangerous objects that cause injury; seller makes fraudulent representations about the object sold; if there's an intended third party beneficiary (surgeon/apothecary); public duty (similar to surgeon exception because of third party beneficiaries) 3. Facts: Defendant sold, but did not manufacture, defective lamp. Did not know it was defective. Sold lamp to wife of Plaintiff, wife was injured when lamp exploded C. Thomas v. Winchester (1852) (dandelion/belladonna) 1. Rule: If one's actions put another's life in imminent danger, privity of contract is not required to find liability. (Intended third party beneficiary also present here, but not necessary to the winning of the case on inherently dangerous objects) 2. Facts: Plaintiff was prescribed dandelion, defendant sold her poison marked as dandelion; plaintiff was injured. Defendant was manufacturer and seller of the extracts, but he did not manufacture thishe just bought it from someone else and put his label on it, sold it to the pharmacy plaintiff used. D. Loop v. Litchfield (1870) (flywheel) 1. Rule: A flywheel is not inherently dangerous, and thus does not fall under the exception articulated in Thomas v. Winchester 2. Facts: Defendant sells a defective flywheel to Plaintiff's neighbor- both neighbor and Defendant know it's defective. Five years later, Plaintiff borrows it and it flies apart, killing plaintiff's family member. E. Losee v. Clute (1873) (Steam boiler) 1. Rule: Steam boilers are not inherently dangerous and does not qualify for the Winchester exception because the manufacturer had fulfilled his contract with company. 2. Facts: Defendant poorly made a steam boiler, Defendant knew it was poorly made. Tested it and sold it to company, after that, defendant had nothing to do with the boiler. Boiler exploded and flew onto Plaintiff's property, destroying buildings. 3. This is where the "inherently dangerous" rule starts to break down F. Statler v. Ray Manufacturing (1909) (coffee urn) 1. Rule: A poorly made coffee urn is an inherently dangerous object because it is liable to become a source of danger if negligently constructed. 2. Facts: Defendant manufactured a coffee urn, and knew that it would be dangerous is not sufficiently tested for safety. 3. The "inherently dangerous" rule is broken. Losee and Statler are analogous, but came out differently. G. MacPherson v. Buick Motor Co. (1916) CARDOZO (Broken wheel) 1. Rule: A manufacturer is liable to a third party when a. he negligently manufactures a product, b. sells it to a party he knows will not be the only user, and c. negligence is proximate to the harm. 2. Facts: Defendant sold a car to a retailer who sold it to plaintiff. Defendant did not manufacture the wheel

3. Before MacPherson: The rule of privity applies to negligence claims with a growing list of discordant exceptions for inherently dangerous objects. 4. After MacPherson: Plaintiff recovers when the object that caused harm is negligently made and reasonably certain to place life and limb in danger (knowledge requirement). 5. What Cardozo did a. Reinterpreted the previous cases to uphold precedent, but gave his own reasoning to the decisions (ignored dicta of past rulings). Why? The common law idea of stare decisis- there's a difference between overruling and reinterpreting i. What's good about stare decisis? Predictability. But the law here was not longer predictable, so Cardozo's overhaul was appropriate b. Made the law on privity rule and its exceptions coherent again c. i.e. Reinterpretation of Losee v. Clute (steam boiler): Defendant was not liable because he knew his safety test was not the final one. 6. Why let the judiciary make new laws? They are faster than the legislature in a changing world (where things are not made one at a time anymore so privity rule is not sufficient)

VIII. Fourth Amendment Search Cases (common law evolution) A. Olmstead v. U.S. (U.S. 1928) (evidence of selling alcohol- wiretapping) 1. Rule: The use of evidence gathered by wiretapping private phone lines does not violate the 4th Amendment's protections against illegal searches and seizures 2. Why? Court decides 4th Amendment requires a physical invasion of one's property; only tangible things can be searched or seized; the wiretapping involved no physical trespass onto defendant's land B. Goldman v. U.S. (U.S. 1942) (Bankruptcy fraud- detectaphone) 1. Rule: Eavesdropping by means of a detectaphone against a shared wall is not and illegal search and seizure under the 4th Amendment. 2. Why? Although the agents tried to bug the office, they were not successful, using the shared wall to magnify the sound meant the defendant had no reasonable expectation of privacy. C. Silverman v. U.S. (U.S. 1961) (Gambling- Used spike mike, contact with heating duct) 1. Rule: It is a violation of the 4th Amendment to intrude in a person's home or office to gather evidence through listening devices. 2. Why? The court is catching up with technology- physical trespass is not necessary; the spike mike made contact with the heating duct of the home and court ruled that it's a physical intrusion, regardless of technical definition of trespass. i. Court does not say it's overruling Olmstead and Goldman: distinguishes this by "physical intrusion" requirement D. Katz v. U.S. (1967) (public phone booth bug) 1. Rule: 4th Amendment protection is extended to protect individuals acting with a reasonable expectation of privacy 2. Why? Trespass is no longer a requirement under the 4th Amendment- makes a Constitutional ruling that overrules Olmstead and Goldman. Tangible property interests are no longer the controlling factor in a government's limit on searches E. Recap: 1. Olmstead and Goldman: physical trespass was the key. Did not occur in either. 2. Silverman: Technical physical trespass is not necessary. Physical intrusion is the key: this is how the court distinguishes from Olmstead and Goldman. 3. Katz v. U.S.: New standard is "reasonable expectation of privacy," trespass is not required.