I have just posted a very short essay (12 pages), The Limits of Fourth Amendment Injunctions, for a symposium issue of the Journal on Telecommunications and High Technology Law. The essay is a response to the Sixth Circuit's still ongoing litigation in Warshak v. United States, the e-mail privacy case I have blogged about; the essay attempts to take the basic insights of my wannabe amicus brief and broadens it into a short scholarly article. Here's the abstract:

When is injunctive relief appropriate in Fourth Amendment cases? Should courts feel free to craft wide-ranging injunctive relief to avoid Fourth Amendment defects? Or is there something wrong, either as a matter of doctrine or policy, with crafting broad injunctions in Fourth Amendment cases?

This brief essay will suggest answers to these questions. The first part argues that as a matter of history and practice, injunctive relief has been used narrowly as an on-off switch for carefully-defined practices. The most significant doctrinal hook for this limitation is Article III standing: Injunctive relief requires a real and immediate threat of future injury to establish a case or controversy. The precise meaning of that requirement remains murky, but it arguably means that a plaintiff must show a real and immediate threat of a highly specific set of facts occurring.

The second part argues that as a matter of normative policy, any ambiguity in the current state of the law should be resolved against imposing broad Fourth Amendment injunctions. Crafting broad injunctive relief forces courts to assume duties that they are not competent to handle. Fourth Amendment doctrine is tremendously fact-specific: every fact pattern is different, and even the exceptions to the exceptions have their own exceptions. Courts are poorly suited to design broad injunctive relief in this setting. Courts should therefore decline to craft Fourth Amendment injunctions covering classes of facts instead of individual facts.