Archive | Equilibrium-adjustment

Final Version of “Defending Equilibrium-Adjustment”

The Harvard Law Review has just posted the final version of my response to Professor Slobogin’s critique of my recent article, An Equilibrium-Adjustment Theory of the Fourth Amendment. Here’s a short excerpt from my response, Defending Equilibrium-Adjustment:

Equilibrium-adjustment is not originalism. It is a theory of maintaining the status quo balance of power, not an effort to restore eighteenth-century rules. That understanding explains why living constitutionalists and pragmatists alike have embraced equilibrium-adjustment, and why the chief attack on it has been launched on originalist grounds. It is true, as Slobogin says, that the theory “harks back to some earlier time.” But that does not make it originalist. The relevant “earlier time” is a time before a triggering technological development, but it need not be the year the Fourth Amendment was ratified.

To be sure, it is possible for originalists to adopt the method of equilibrium-adjustment. But nonoriginalists can adopt it, too. In my view, its widespread appeal is what makes equilibrium-adjustment a valuable tool for understanding Fourth Amendment law: Justices from very different interpretive schools use it. It operates equally well within all of the different theories of interpretation. Different Justices might tailor the method based on their interpretive commitments. But they all can engage in equilibrium-adjustment, and almost all do. The Supreme Court’s recent decision in United States v. Jones provides a revealing illustration of how equilibrium-adjustment can occur in both originalist and nonoriginalist forms.
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The Supreme Court handed down Jones just a few weeks after my Article appeared, and the case divided the Court into two main camps. One adopted an originalist methodology; the other explicitly rejected originalism. But both approaches relied heavily on equilibrium-adjustment.
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The majority opinion by Justice Scalia engaged in equilibrium-adjustment using an originalist framework.

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Defending Equilibrium Adjustment

As a follow-up to my recent article, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476 (2011), the editors of the Harvard Law Review published a short response to the article by Professor Christopher Slobogin, An Original Take on Originalism, 125 Harv. L. Rev. F. 14 (2011). Professor Slobogin contends that equilibrium-adjustment is just originalism, and therefore has all of the problems that Professor Slobogin identifies with originalism.

The Forum editors offered to publish my reply, and I have just posted this 8-page essay, Defending Equilibrium Adjustment, 125 Harv. L. Rev. F. (forthcoming 2012). From the introduction:

Equilibrium adjustment is not originalism. Equilibrium adjustment is a theory of maintaining the status quo balance of power, not restoring the rules of the eighteenth century. That explains why living constitutionalists and pragmatists alike have embraced equilibrium adjustment, and why the chief attack on it has been launched on originalist grounds. It is true, as Professor Slobogin says, that the theory “harks back to some earlier time.” But that does not make it originalist. The relevant “earlier time” is a time before the technological development, not specifically the year the Fourth Amendment was ratified.

In short, Slobogin’s critique misses the mark by aiming at the wrong target. His response critiques originalism but not equilibrium adjustment. I will develop my reply in three parts. First, I will show how the theory of equilibrium adjustment differs from originalism. Second, I will use the Supreme Court’s recent decision in United States v. Jones to show how equilibrium adjustment coexists in both originalist and non-originalist forms. Finally, I will address Professor Slobogin’s criticism that the theory of equilibrium adjustment does not necessarily answer which way the Supreme Court should rule in difficult cases. I concede the point,

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An Equilibrium-Adjustment Theory of the Fourth Amendment: The Basic Idea

I recently posted a new draft of my latest article, An Equilibrium-Adjustment Theory of the Fourth Amendment, which recently was accepted for publication in the Harvard Law Review. In this post, I wanted to summarize the argument for readers who don’t feel like wading through 60 pages of law review writing.

Here’s the basic idea. Fourth Amendment law regulates criminal investigations. Specifically, it regulates when and how the police can collect evidence to prove crimes beyond a reasonable doubt. Fourth Amendment law faces a recurring problem, though: The facts of crimes and the facts of investigations are constantly changing. The bad guys are constantly coming up with new ways to avoid being caught, and the cops are constantly coming up with new ways to catch them. As a result, Fourth Amendment law is constantly facing new facts to regulate. In some cases the new facts reflect new technologies, used by the police, criminals, or both. And in other cases the new facts reflect new crimes or new social practices.

My argument is that there turns out to be a surprisingly common and surprisingly simple way that courts respond to this problem — and that response ends up explaining a remarkable amount of Fourth Amendment law. Courts respond to the new facts by trying to restore the old level of protection. If a new technology or practice increased government power, courts ratchet up Fourth Amendment protection to lessen government power. If a new technology or practice decreased government power, courts loosen protection to restore government power. The result is a correction mechanism. It’s kind of like the experience of driving over mountainous terrain: You add gas on the uphill and let off the pedal on the downslope, all in an effort to maintain constant speed. That’s what judges do [...]

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