Katz as Originalism: The Fourth Amendment & Privacy

Katz as Originalism: The Fourth Amendment & Privacy

Tuesday, November 15, 2022 | Room 105, Berkeley Law

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The “Expectation of Privacy” test of Katz v. United States is a common target of attack by originalist Justices and originalist scholars. They argue that the Katz test for identifying a Fourth Amendment search should be rejected because it lacks a foundation in the Constitution’s text or original public meaning. This is not just an academic debate. The recent ascendancy of originalists to the Supreme Court creates a serious risk that the reasonable expectation of privacy test will be overturned and replaced by whatever an originalist approach might produce.


Orin Kerr

Orin Kerr is one of the country’s foremost scholars of the Fourth Amendment and criminal procedure. He helped found the field of computer crime law, which studies how traditional legal doctrines must adapt to digital crime and digital evidence.

Kerr has authored more than seventy law review articles, over half of which have been cited in judicial opinions (including eight different articles that have been cited in U.S. Supreme Court opinions). He is regularly listed as among the most cited and most influential law professors in the United States. In addition to writing law review articles, Kerr has authored popular casebooks, co-authored the leading criminal procedure treatise, and published countless blog posts. These days he also wastes a lot of time on Twitter.

Kerr has briefed and argued cases in the United States Supreme Court and three federal circuits. He has testified six times before Congressional committees. From 2013-2019, Kerr served on the Advisory Committee for the Federal Rules of Criminal Procedure by appointment of Chief Justice Roberts. In 2015, the Chief Justice appointed him to serve on the Judicial Conference’s committee to review the Criminal Justice Act.

Before attending law school, Kerr earned undergraduate and graduate degrees in mechanical engineering. He has served as a law clerk for Judge Leonard I. Garth of the U.S. Court of Appeals for the Third Circuit and Justice Anthony M. Kennedy of the United States Supreme Court. He has also served as a trial attorney in the Computer Crime and Intellectual Property Section at the U.S. Department of Justice and a Special Assistant U.S. Attorney in the Eastern District of Virginia.

Prior to joining the Berkeley Law faculty, Kerr was a professor at the George Washington University Law School and later at the University of Southern California Gould School of Law. He also has been a visiting professor at the University of Pennsylvania and the University of Chicago.

Andrea Roth

Andrea Roth joined the Berkeley Law faculty in 2011, after 3 years as a Grey Fellow at Stanford and 9 years as a trial and appellate public defender in Washington, D.C. Her research focuses on how pedigreed concepts of criminal procedure and evidentiary law work in an era of science-based prosecutions. Her recent articles and book chapters include “The Use of Algorithms in Criminal Adjudication,” in The Cambridge Handbook on the Law of Algorithms (Barfield, ed., 2021); “Admissibility of DNA Evidence in Court,” in Silent Witness (Erlich, Stover, & White, eds., Oxford Univ. Press 2020); “‘Spit and Acquit’: Prosecutors as Surveillance Entrepreneurs,” 107 Cal. L. Rev. 405 (2019), and “Machine Testimony,” 126 Yale L.J. 1972 (2017). She is also a co-author on a leading Evidence casebook (Sklansky & Roth) and a Scientific Evidence treatise (Imwinkelried, Moriarty, Roth, & Beety). In 2021, she was appointed chair of the Legal Resource Task Group of the National Institute of Standards and Technology’s Organization of Scientific Area Committees and is one of several faculty co-directors of the Berkeley Center for Law and Technology. She is also an elected member of the American Law Institute.

In 2019 Roth was one of four recipients of the campus-wide Distinguished Teaching Award. In 2017, she received the campus-wide Prytanean Faculty Award, given to one pretenure woman faculty member. In 2016, she received the law school’s Rutter Award for Teaching Excellence. She has also received teaching awards from Women of Berkeley Law and the Berkeley Criminal Law Journal.

William J. Cuddihy

Author of The Fourth Amendment. The Fourth Amendment’s protection against unreasonable search and seizure provides the bulwark for police regulation and many other government functions in the United States. One of the most controversial rights in the Bill of Rights, this amendment is also among the most frequently adjudicated provisions of constitutional law. Yet its meaning has remained deeply contested, and the story of its origins is largely unknown. This book tells the full story of the Fourth Amendment’s complex lineage, including its intellectual roots in England. This book has particular relevance today given the long list of controversial new surveillance measures undertaken by the government in recent years, including the USA Patriot Act and the NSA wiretapping program. The preface has been written by privacy expert Daniel Solove.

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