Part 2 – Harvard Law Review – Anonymous Arguments against the 4th Amendment

HLR images

The Harvard Law review is one of the few law reviews that will still publish articles anonymously. Most law reviews have moved away from this practice for varying reasons, the ones that still do appear to do so out of tradition. In the process of my research I called the reference desk at the Harvard Law Review in regards to citing an anonymous article. I didn’t say which one. I also asked the question why an article would be published anonymously? The answer I got can be summarized as follows:

“If a lot of student editors review an article, under the spirit of collaboration they publish the article anonymously rather than list all the contributing members.”

That answer didn’t make a lot of sense because Harvard Law Students, like all students, want their names on pieces of work so they can reference them on their Resumes. I didn’t get an answer on why just the author wasn’t listed. The implied non-answer could mean that the Harvard Law Review editors collaborated in writing the article. I found this strange so I reached out to some people whom I thought could help clarify at the following organizations, Harvard Law School, Heritage Foundation, and the American Civil Liberties Union (ACLU), UCLA, and NYU but this time I emailed them the article in question, “The Fourth Amendment’s Third Way”and included my own paper “At The heart of Big Brother” which is the basis for Part 1 of this research blog.  Here were their exact email responses:

Harvard Law School – Yochai Benkler (190)

September 14th, 2013

Dear Mr. Allsup,

Thank you for your kind words about my Guardian piece. As for the unsigned Note in the HLR, these are pieces of student writing are a normal part of the educational process that is membership in the review. Anonymity has always been the norm for these pieces. The reason supposedly is that the students are insufficiently formed professionally to have a signed piece published under their name, at least not one that goes through the Note review processed, which assesses them as student papers, rather than the Article review process, which assesses them as faculty or mature independent pieces. Other law schools have moved away from publishing these as unsigned, but not the HLR. Neither the Articles nor the unsigned Notes, in particular not the Notes, represent anything like a consensus or generally accepted view even of the set of students then-working on the review, much less of the Harvard Law School more generally. The Note you have identified is a piece of student writing that does not represent the views of anyone other than its author, likely a second or third year student. If the Dean at the time would have tried to influence that piece in any way, it would have been utterly unacceptable as a matter of academic freedom or the pedagogy behind having student-editors in law journals. Imputing the views of a student Note to every graduate of the Harvard Law School would strike most alumni as bizarre. It provides not more insight into the mind of any of the HLS alums who are presently on the supreme court than it does into the minds of other alums like William Brennan or Ralph Nader, or, for that matter, me. I completely agree that there are real political issues we need to address arising from the national security establishment’s expansion. But I don’t think an unsigned student Note sheds much light on how we got here or what we need to do to get out.

Yochai Benkler (191)
Jack and Lillian Berkman Professor for Entrepreneurial Legal Studies Faculty Co-Director, Berkman Center for Internet and Society Harvard Law School

The Heritage Foundation – Paul Larkin (192)

September 16th, 2013

Mr. Allsup:

Thank you for the two articles. I do not know when I will get to reading them, but I will add them to my list.

I did want to bring two points to your attention of which you may have been unaware. First, the Harvard Law Review has a longstanding policy of not identifying the author of a student note (law reviews label a student article as a “Note,” not as an “Article”), so there is nothing unusual in not seeing an author listed for the one that you sent to me. Second, the Dean of the Harvard Law School has no say in deciding what articles the law review will publish. The members of the law review make publication decisions, with the President having the final say. That Justice Elena Kagan was dean at the time of publication of that student note therefore is of no moment.

Good luck in your work.

Paul Larkin (193)
Senior Legal Research Fellow –  Center of Legal & Judicial Studies                               The Heritage Foundation

American Civil Liberties Union (ACLU) – Susan Herman (194)

September 19th, 2013

Dear Chris Allsup,

I think Harvard would probably be delighted to take credit for changing the world in any dramatic way, I don’t think the article you attach has actually had much impact.

The courts pay no attention to state law in interpreting the 4th Amendment and, if they were to do so, the 4th Amendment might in some ways be more protective of our rights.
One of the principal 4th Am interpretations that enabled our surveillance state was the “third party doctrine established in 2 Supreme Court cases called Smith v MD and Miller v US. In those cases the Court said that the 4th Am doesn’t prevent the government from obtaining, without a warrant, any information you have shared with a third party because you have assumed the risk that the third party — your bank, your telephone company in those cases — might share that information and therefore you have no reasonable expectation of privacy. Silly, no? This is the theory key sections of the Patriot Act relied on, now expensively interpreted to allow the government to gather all “metadata” on your telephone calls, and perhaps even information on your emails and web visits from your ISP.

Coincidentally, I am speaking on this subject tomorrow at the Heritage Society. They may be videotaping the panel for their website, if you’re interested.

I am always glad to find people who take the 4th Amendment seriously. You’re an ACLU member at heart and perhaps, I hope, in fact.

Sincerely,
Susan Herman (195)
President, American Civil Liberties Union                                                                 Centennial Professor of Law – Brooklyn Law School

UCLA School of Law School – Eugene Volokh (196)

December 31st, 2013

I haven’t read the Note that you attach, but I’m not sure I see this as a “non trivial contribution” or for that matter “Harvard’s” contribution. These unsigned Notes are written by law students; they are in theory selected for publication by Harvard Law Review student editors, but at Harvard pretty much anyone who is on law review gets his Note published. The Dean’s office is uninvolved in such matters; the students are expressing their own views. Beyond this, such student notes very rarely make “non trivial contributions” to the law. Occasionally one will get cited a lot by courts, but most never are, and this one in particular hasn’t been cited once by a court.

Nor am I aware of any Harvard-originated theory of “dynamic incorporation” (not that this would be much of a “Harvard” view even if it were created by some Harvard professor, since law professors speak for themselves, not their schools). Finally, it’s not clear to me how originalism would play out with regard to FISA, and I don’t know what exactly “social convention” means; but in any event, whether or not various surveillance techniques are unconstitutional, I doubt this Note has much influence on it, and I’m sure that it can’t be credited to “Harvard” as an institution.

Eugene Volokh (197)
Gary T. Schwartz Professor of Law University of California Los Angeles (UCLA)

University of Chicago & NYU School of Law – Richard Epstein (198)

January 10th, 2014

Hi,

I would be careful about conspiracy theories here. I did teach the Fourth Amendment last year for the first time, and it is a tangle. There are many cases where the restrictions are too severe on the police and others where they are too lax. It is hard to get a coherent picture out of the gloom. But of all the government programs the NSA is the best run, as best we can tell, which is imperfect. The key question is whether the government collects data which it will only use if it gets a warrant, or whether it peeks through the material in advance. The evidence to date suggests compliance is at a high level, and that deviations from the norms are punished. It is important to keep a tight eye on government, but it takes no genius to see the serious difficulties with the IRS, and with Obamacare, where the later program contains an ill disclosed statement that says that no one can have a reasonable expectation of privacy with respect to data that is submitted to the government with an application. But Harvard professors are all over the map on this question, as best I can tell, and this is not an issue on which Kagan has staked a strong position one way or the other.

Richard Epstein (199)
Laurence A. Tisch Professor of Law New York University (NYU) School of Law

Peter and Kirsten Bedford Senior Fellow – Hoover Institution (200)

James Parker Hall Distinguished Service Professor Emeritus of Law (201)          University of Chicago Law School

There is a lot to say regarding these responses but I think their words and the implications of them speak volumes. One interesting fact is that over the last few decades’ citations in Supreme Court decisions of law review articles have been declining but are still being used.(202) Harvard and Yale law reviews are always at or very close to the top of the list of law reviews.(203) In fact, the top five law reviews based on their number of citations and scholarly impact according to the American Bar Association in 2012 were: (204)

  • Yale
  • Harvard
  • Chicago
  • Stanford
  • New York University

In my follow up emails I thanked them for their responses and respectfully disagreed that the HLR article “The Fourth Amendment’s Third Way” was a student piece of work, but I did agree with them that as a stand-alone article it probably didn’t influence anyone or any court jurisprudence. I also said there were two additional articles published at the exact same time whose arguments when/if combined with the “The Fourth Amendment’s Third Way” most certainly could have made an impact and asked if they agreed. Here were the two additional ‘Anonymous’ Harvard Law Review Articles published in parallel.

HLR – “State Law as “other law”: Our Fifty Sovereigns in the federal Constitutional canon” HLR – “New Evidence on the Presumption Against Preemption: An Empirical Study of Congressional Response to Supreme Court Preemption Decisions”

Out of all the respondents, nobody responded to my follow up request to either refute my claim or agree with it. With very little reference material for these articles that are probably only known to a few people interested in legal academics, I think it is appropriate to now provide analysis on each article to truly understand their meaningful uses. It is probably also meaningful to reference a quote from a previous Harvard Law Review President, who would say this to dispel arguments within the editorial staff. (205)

“Just remember, folks: Nobody reads it.”
Barack Obama – President of Harvard Law Review

Harvard Law Review Article: (206)
“The Fourth amendments Third Way” – Anonymous Author
Volume 120, April 2007, Number 6

Article Summary:

This article confronts a “fundamental question about the fourth
amendment” that lies beneath all of its doctrinal puzzles, namely, “what method should be used to identify the range of law enforcement practices that it governs and the abuses of those practices that it restrains.”(207) It does so, in particular, by examining the relationship between the Fourth Amendment and state law.(208) This article argues that the Amendment should be interpreted as dynamically incorporating state law, and it explains how this interpretive method injects substantive legal content into the vague constitutional text and reconciles the tension between the Amendment’s two clauses.(209) It contends that the dynamic incorporation method is pragmatically and normatively superior to the major alternatives while remaining justified by constitutional theory.(210)

Among the numerous potential sources of legal content for the
Fourth Amendment, one in particular has firm roots in the Amendment’s jurisprudence yet has been subject to very little scholarly analysis. That source is state law.(211)

From a textual perspective, dynamic incorporation offers clarity and common sense.(212) The first clause of the Amendment provides the general rule: unreasonable searches by state actors are unconstitutional.(213) Reasonableness should not be a fuzzy term with fluctuating meaning and does not call upon the federal judiciary to engage in value judgments or to balance competing interests.(214) Rather, what is reasonable is that which is lawful under state law; inversely, what is unreasonable is that which is unlawful under state law.(215) This interpretation is sensible, given that the “English common-law tradition to which the American revolutionaries appealed often tied legality to ‘reasonableness.’”(216)

How would this work in Practice?

First, courts would ask whether, under state law, the challenged police actions would constitute an actionable offense if a private party had committed them.(217) If the answer were yes — for example, if the search had been an actionable trespass — then the search would violate the Fourth Amendment.(218) If the answer is no — for example, if common law decisions of the state’s judiciary had established an exception or defense to the trespass — then the actions would be constitutional.(219)

Second, searches or seizures conducted pursuant to a warrant would be constitutional provided that the warrant had been validly issued.(220) Ancillary questions concerning the procedures for actions taken under a warrant, such as the applicability of the knock-and- announce requirement, obviously cannot be tested under state law because private actors do not obtain warrants, and therefore no analogous body of state law deals with how private actors may interact when one has a warrant.(221) Accordingly, questions surrounding the constitutionality of searches conducted pursuant to warrants cannot be analyzed using the dynamic incorporation approach.(222) This constitutes a gap in the method, and answers would have to be sought elsewhere.(223)

Analysis:

The arguments in this article that Dynamic Incorporation as a method of interpretation is superior than the traditional methods even when the method of interpretation, self admittedly by the author, has no scholarly support is disconcerting. What is also disconcerting is that Dynamic Incorporation as a method releases the inherent tension between search and seizure. This method would basically enable law enforcement to obtain digital records that reside on third party property without ever notifying the end user because the law believes that you wittingly shared your information with the service (banking, email, social media, phone records, etc.) The logic is circular because by virtue of the fact that most our data resides on third party services we subscribe to and pay money for, ultimately the only way to protect yourself is to not access any systems online. This method allows law enforcement to obtain all the information it wants with a very low threshold for respecting the privacy rights of individuals.

Harvard Law Review Article: (224)
“State Law as “other law”: Our Fifty Sovereigns in the federal Constitutional canon” Anonymous Author
Volume 120, April 2007, Number 6

Article Summary:

This article questions the disparate attitudes toward the Court’s use of state and foreign law.(225) It examines whether state law citations are qualitatively different from foreign law citations.(226) Arguing that the two are more alike than different, this article questions the premises of an interpretive theory that could justify categorically rejecting foreign law citations while supporting state law citations.(227) Such a theory is plausible only on specific and contestable empirical and normative assumptions that current discussions gloss over.(228) More broadly, this article aims to challenge intuitions regarding appropriate constitutional authorities by analyzing the under examined practice of citing state law.(229)

This article proceeds in three Parts.(230) Part I examines the Supreme Court’s use of state law in four substantive areas —the Fourteenth Amendment, the Fourth Amendment, the Sixth Amendment, and the Eighth Amendment — presented in ascending order of how firmly established state legislation is in the applicable doctrine.(231) Part II describes state law and foreign law as forms of “other law” and emphasizes that their value depends on one’s preferred interpretive theory.(232) To hold the pro–state, anti–foreign law position evident in contemporary commentary, one must subscribe to a theory that this article terms “patriotic cosmopolitanism.”(233) Part III challenges the premises of patriotic cosmopolitanism and argues that a strong form of the theory, which would deem state law invulnerable to common criticisms of foreign law, relies on untenable distinctions.(234) A weak form of the theory deeming state law a lesser evil is plausible, but only under certain normative and empirical assumptions that warrant further attention.(235)

Analysis:

The key pieces to understand in this article are that State Law and Foreign law are both viewed as other law when it comes to the Constitution. U.S. State law however cannot be deemed unconstitutional so while it is considered as other law from a constitutional doctrine standpoint, the thinking goes that state law by virtue that it is overseen by the Constitution can be used in judicial decisions and interpretations. The article also states that just because a majority of states have a similar statute on a particular issue, doesn’t necessarily mean it is required by the Supreme Court to interpret that as a majority in decisions. In addition it goes on to say that just because a minority of states have a similar statute on a particular issue, doesn’t mean the Supreme Court is required to interpret that as being a minority only rule. This dichotomy gives the court latitude to makes decisions as they see fit.

Another major point of information in the article is that it states that the Supreme Court is rather selective when using foreign bodies of law. The court seems to primarily do so only when they have a “rights enhancing outcome”, and there is no inherent reason that the Court could not do the same for state law citations. Justice Ruth Bader Ginsburg as well as many other liberal leaning Supreme Court justices have been public supporters of using foreign law in interpreting constitutional canon.(236)

“I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012. I might look at the Constitution of South Africa … a fundamental instrument of government that embraced basic human rights.”

-Supreme Court Justice Ruth Bader Ginsburg, Jan. 30, 2012. (237)

Harvard Law Review Article: (238)
“New Evidence on the Presumption Against Preemption: An Empirical Study of Congressional Response to Supreme Court Preemption Decisions”
Anonymous Author
Volume 120, April 2007, Number 6

Article Summary:

There is a remarkable gap in scholarly writing about preemption issues and no study has looked at what congress actually does after the Supreme Court decides a preemption case.(239) This article begins the process of filling in this gap. It looks at the Congress’s responses to every Supreme Court preemption decision between the 1983 and 2003 Terms to see whether the facts support either side’s argument.(240) Ultimately, this article concludes that neither side should make arguments based on likely congressional responses to the Court’s preemption decisions.(241) The data show that congress almost never responds to the Courts preemption decisions, so mistaken interpretations against preemption are unlikely to be corrected.(242)

Part I of this article summarizes the ongoing debate over the presumption against preemption and explains the weight that academics on both sides place on Congress’s likely response to preemption decisions.(243) Part II provides the empirics: it describes congressional responses to Supreme Court preemption decisions between the 1983 and 2003 Terms.(244) Part III offers some possible explanations for trends in congressional behavior uncovered in Part II.(245) Part IV discusses the implications for courts of the findings in parts II and III; it argues that in light of Congress’s failure to respond to preemption decisions, the Court should adopt a pragmatic approach in preemption cases when traditional sources of statutory interpretation are ambiguous.(246) Part V concludes.(247)

Analysis:

This article goes on to conclude that the debate on this issue has been raging for years and nobody seems to be arguing with any empirical data, which leaves the situation at the current status quo. The status quo being that congress will most likely do nothing even when the Supreme Court makes a false interpretation or mistake.

The article finishes with the most interesting statements. It says in light of overwhelming evidence of congressional inaction, a pragmatic approach is the best way forward. This approach is certainly not perfect, but its tremendous benefit is that it focuses judges’ attention on what they and the people really care about: results.

It is another situation where the court has almost free reign because there is no checks and balances based on the empirical data. While the article suggests that the court should adopt a pragmatic approach, it doesn’t necessarily mean in reality that will be the case.

Summary Arguments of HLR Articles

Essentially the arguments in these articles can be easily combined to make the following case, albeit some legal scholar would bury this in impenetrable language for the average person.

The traditional methods of interpretation for the Fourth Amendment would never reasonably allow the release of tension between the notions of search and seizure. We anonymous authors believe that a more a balanced approach to interpreting the Fourth Amendment could be done by using “Dynamic Incorporation” which has no scholarly support because we just created it out of thin air. This new method of interpretation, which relies on state law as its body of legal doctrine, will release the tension between the notions of search and seizure because the way that common law trespass at the state level is written. Thus this approach would be seemingly constitutional because the state law is reasonably constitutional, and even if Congress became aware about the fact this method of interpretation will preempt state constitutions, it doesn’t matter anyway because the empirical data shows that Congress never does anything anyway and we should keep pragmatism in mind while doing it, but not required to do so.

On March 11th, 2014 a article in the New York times titled, “How a  Court Secretly Evolved, Extending U.S. Spies’ Reach” laid out how the Foreign Intelligence Surveillance Court (FISC) evolved over time since it’s creation in the 1970’s.(248)  This evolution went from a court deciding on whether surveillance requests were legal/constitutional or not to actually creating its own interpretations of the laws and Constitution.(249)  One such implication is that in January 2008 the FISA Amendment Act was signed which just so happened to be less than twelve months after these three Harvard Law Review Articles were anonymously published.(250)

This New York Times article illustrates how the FISA court interprets the Fourth Amendment and does so in a manner that releases the tension between the notions of “Search” and “Seizure”.(251)  While the article doesn’t explicitly use the term “Dynamic Incorporation” as the method of interpretation, how the 4th amendment is being interpreted by the FISC works exactly like “Dynamic Incorporation”.(252)  I emailed that article to all of the respondents above and received either a ‘no comment’ or no response.

I think it is a good time to now discuss the importance of “trust” in economic, international, and constitutional law. That will be the topic for my next post.

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