By Matthew Tokson
I recently wrote an article with Ari Ezra Waldman, "Social Norms in Fourth Amendment Law," forthcoming in the Michigan Law Review. We look at how courts use social norms throughout Fourth Amendment law and point out several problems with this quasi-sociological approach.
In theory, social norms can provide an objective basis for courts’ constitutional decisions, grounding Fourth Amendment law in familiar societal attitudes and beliefs. But in reality, social norms can shift rapidly, are constantly being contested, and frequently reflect outmoded and discriminatory concepts. We explore some contemporary sociological literature on social norms and the social construction of technology that bear this out. And we examine how courts’ reliance on norms leads to identifiable errors in Fourth Amendment jurisprudence.
Courts assessing social norms generally adopt the closure principle, or the idea that social norms can be permanently settled. Meanwhile, courts confronting new technologies often adopt the nonintervention principle, or the idea that courts should refrain from addressing new surveillance practices until the relevant social norms become clear. Both of these approaches are flawed, and they have negative effects for equality and privacy.
By adopting longstanding, “closed” norms, courts often embed antiquated norms in Fourth Amendment law—norms that often involve discrimination on the basis of race, gender, or class. By declining to intervene when norms are undeveloped, courts often allow the government to surveil citizens without constitutional check for years or decades. And they cede power over norm creation to companies that design new technologies based on data-extractive business models.
The Article pushes back on the prevailing wisdom that social norms should play a decisive role in determining the scope and content of Fourth Amendment law. And it explores potential new directions, including new doctrinal paradigms, different conceptions of stare decisis in the Fourth Amendment context, and alternative institutional regimes for regulating government surveillance.
And a big thanks to my co-author Ari, who is brilliant and great to work with. His knowledge of sociology and law is remarkable, and co-writing this turned out to be a really fun process.