USA - Forum: The Illusory Promise of General Property Law

ABSTRACT. Federalized, jurisdictionless property law is ascendant in the Supreme Court’s recent majority opinions on the Takings Clause—and in The Fourth Amendment and General Law, Danielle D’Onfro and Daniel Epps tout the benefits of courts developing a national law of property and torts in assessing whether a person has suffered an unlawful search or seizure.

In this Response, I criticize the version of “general law” outlined in their Article, both on its own terms and for its implications for property law specifically. The development of takings law teaches that efforts to make a national law of property are inevitably indeterminate and may threaten the existence of beneficial variation in property rules at the state level. After advocating against the use of general law in constitutional contexts that involve property, this Response concludes by sketching a “patterning approach” to the Fourth Amendment: an approach, first developed by scholars in takings law, that defines protected interests by reference to uniform federal criteria met (or unmet) by nonconstitutional state law. A patterning approach to the Fourth Amendment might offer one of the attractions of the general law model—the way it reasons usefully from private-law doctrines—without the associated costs.


In The Fourth Amendment and General Law, Danielle D’Onfro and Daniel Epps endorse an approach to the Fourth Amendment that brings together some promising recent developments in the field.1 The authors construct their vision of a better way to assess the constitutionality of searches and seizures against two previously proposed versions of the “positive-law approach.” In the first positive-law version, to determine if a Fourth Amendment search or seizure occurred, courts would look at whether the activity would have violated the common law of 1791.2 In the second positive-law version, now associated with the work of William Baude and James Y. Stern,3 courts should determine searches and seizures by looking to actual background law—typically state private-law rules—in effect in the time and at the place of the conduct being challenged and assessing “whether government officials have engaged in an investigative act that would be unlawful for a similarly situated private actor to perform.”4

D’Onfro and Epps take a different approach, arguing that courts deciding Fourth Amendment cases should draw on broad “general law” in all steps in a Fourth Amendment inquiry: whether a search or seizure has occurred, whether the claimant’s rights were violated, and whether an exception to the warrant requirement is nonetheless justified.5 I will explore their definition of the “general law” in much greater detail later on, but for now, it suffices to say that general law is not dependent on the law of any one jurisdiction; instead, it is uniform law discerned from and informed by the rules of multiple jurisdictions, as well as widely shared customs. General law is typically associated with the era of Swift v. Tyson,6 a decision under which federal courts hearing cases in diversity jurisdiction deferred to state-court decisions on matters of “local” law, but independently drew on a range of authorities rather than state-specific common law to pronounce the applicable rule for matters of general law.7 Over time, litigants went to different forums and pushed on the definitions of “local” and “general” in an effort to extract the most favorable ruling, since state and federal courts might reach different conclusions on matters involving general law.8 Eventually, these indeterminacies led the Supreme Court to repudiate Swift in Erie Railroad Co. v. Tompkins, declaring that “[t]here is no federal general common law” and requiring deference to state rulings on state law9—though as D’Onfro and Epps point out, scholars have argued that something like general law persists even in modern doctrine.10

D’Onfro and Epps ground their argument that general law can be used to resolve Fourth Amendment questions in part on this persistence. Under the general-law model, courts would use common-law concepts from property and tort law—things like trespass, abandonment, and the privacy torts—to define uniform rules applicable in Fourth Amendment cases. According to the authors, this approach would carry several benefits over alternatives. As opposed to the positive-law approach, which might lead to variations depending on the jurisdiction in which the violation occurred, the authors contend that the general-law approach will yield desirably uniform results.11Further, the authors contend that the general law would balance flexibility and determinacy better than either current privacy-based analyses or an approach tethered to the common law of 1791.12

There is much to like about certain aspects of the general-law approach. For one thing, the general-law approach, like the positive-law model, recognizes the utility and centrality of private law as a mode of analyzing legal problems. For much of the last century, private law was often neglected as a worthy subject of study. And when studied, it has been in crudely instrumental terms, as essentially public regulation in disguise.13 A new generation of scholars associated with the New Private Law movement is seeking to renew interest in private-law structures—especially those within tort, contract, property, equity, and unjust enrichment—as having an important internal logic and instantiating philosophic commitments, social values, customs, and mores.14

Indeed, a possible salutary effect of both the positive- and general-law approaches is that either would encourage litigants to take private law seriously, bringing relevant common-law precedents as well as applicable public-law sources to courts’ attention.15One of the great pleasures of the authors’ Article is the way it argues from these traditional common-law concepts, demonstrating the continued utility of frameworks from bailments to abandonment, even in a teched-up, statutory world. Courts using either the general-law or positive-law model are likely to have to grapple with blackletter law rather than engage in sometimes fuzzy and inconsistent—if not incoherent—inquiries about whether an individual’s “reasonable expectations of privacy” have been violated. This has been the dominant question in Fourth Amendment analyses since Justice Harlan penned the phrase in his 1967 concurrence in Katz v. United States.16 Indeed, Katz itself could perhaps have been decided by reference to enduring common-law principles. Katz famously held that the government violated the Fourth Amendment when it recorded an individual’s conversation in a public phone booth without a warrant.17 But legal precedent dating back to the time of Blackstone recognized eavesdropping by a private party as an actionable public nuisance.18

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