Majority opinion

About: Majority opinion is a research topic. Over the lifetime, 4107 publications have been published within this topic receiving 54845 citations. The topic is also known as: opinion of the court.

The Mosaic Theory of the Fourth Amendment

Abstract: In the Supreme Court's recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions had always evaluated each step of an investigation individually. Jones introduced what we might call a "mosaic theory" of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search.This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that a mosaic theory would raise, and it analyzes the merits of the proposed new method of Fourth Amendment analysis. The Article makes three major points. First, the mosaic theory represents a dramatic departure from the basic building block of existing Fourth Amendment doctrine. Second, adopting the mosaic theory would require courts to answer a long list of novel and challenging questions. Third, courts should reject the theory and retain the traditional sequential approach to Fourth Amendment analysis. The mosaic approach reflects legitimate concerns, but implementing it would be exceedingly difficult in light of rapid technological change. Courts can better respond to the concerns animating the mosaic theory within the traditional parameters of the sequential approach to Fourth Amendment analysis.IntroductionThe Fourth Amendment prohibits unreasonable searches and seizures,1 and the most challenging and important threshold question in interpreting the Fourth Amendment is what counts as a "search."2 Identifying Fourth Amendment searches traditionally has required analyzing police action sequentially. 3 If no individual step in a sequence counts as a search, then the Fourth Amendment is not triggered. No Fourth Amendment violation has occurred.In United States v. Maynard,4 the D.C. Circuit introduced a different approach, which could be called a "mosaic theory" of the Fourth Amendment.5 Under the mosaic theory, searches can be analyzed as a collective sequence of steps rather than as individual steps.6 Identifying Fourth Amendment searches requires analyzing police actions over time as a collective "mosaic" of surveillance; the mosaic can count as a collective Fourth Amendment search even though the individual steps taken in isolation do not.7 The D.C. Circuit applied that test in Maynard to GPS surveillance of a car. The court held that GPS surveillance of a car's location over twenty-eight days aggregates into so much surveillance that the collective sequence triggers Fourth Amendment protection.8When the Supreme Court reviewed Maynard in United States v. Jones,9 concurring opinions signed or joined by five of the justices endorsed some form of the D.C. Circuit's mosaic theory.10 The majority opinion resolved the case without reaching the mosaic theory, and neither concurring opinion gave the issue extensive analysis. But Justice Alito's concurring opinion for four justices clearly echoed the basic reasoning of the D.C. Circuit in concluding that long-term GPS monitoring of a car counts as a search even though short-term monitoring does not.11 Justice Sotomayor's separate concurrence also voiced support for the mosaic approach.12The concurring opinions in Jones raise the intriguing possibility that a five-justice majority of the Supreme Court is ready to endorse a new mosaic theory of Fourth Amendment protection. That prospect invites lower courts to consider whether the mosaic theory is viable and if so, how it should be applied. A handful of courts have begun to do so in the short time since the Court handed down Jones, with mixed results so far.13 Law enforcement is paying close attention as well. Soon after Jones, the General Counsel of the Federal Bureau of Investigation informed a law school audience that the mosaic opinions in Jones were causing significant turmoil inside the FBI. …

The Information Dynamics of Vertical Stare Decisis

Abstract: We propose a dynamic model of precedent in a judicial hierarchy which incorporates a “bottom-up” informational component. When a high court establishes precedents it has uncertainty regarding how these precedents will play out when applied to future legal disputes. Lower court implementation of these precedents can inform the high court about the contemporary policy implications of the precedent. If lower court usage of a precedent is informative, the high court will consider the revealed location of the precedent when contemplating reducing the precedent’s authority and applicability to future cases. Using data on U.S. Supreme Court precedents and U.S. Courts of Appeals citations to these precedents, we estimate a model of the Court’s negative treatment of precedent. We find that lower court usage of precedent can provide new, useful information on the policy content of a precedent, helping the Court in shape law in a way consistent with its preferences.

A Critical Guide to Marbury v. Madison

Abstract: The concept of judicial review of the constitutionality of state and federal statutes by the Supreme Court is generally rested upon the epic decision in Marbury v. Madison. The controversies which have surrounded the exercise of this power by the Supreme Court require a periodic reexamination of the concept of judicial review at its source, the Marbury opinion. This article proceeds by examining the historical context in which the case arose and analyzes the opinion in terms of various alternative approaches which might have been utilized by Chief Justice Marshall. The specific holding of the case is isolated in contrast to later interpretation given it, and a collection of relevant historical materials is presented to lend insight into the constitutional viewpoints of the period.

Does Public Opinion Affect Political Speech

Abstract: Does public opinion affect political speech? Of particular interest is whether public opinion affects (i) what topics politicians address and (ii) what positions they endorse. We present evidence from Germany where the government was recently forced to declassify its public opinion research, allowing us to link the content of the research to subsequent speeches. Our causal identification strategy exploits the exogenous timing of the research's dissemination to cabinet members within a window of a few days. We find that exposure to public opinion research leads politicians to markedly change their speech. First, we show that linguistic similarity between political speech and public opinion research increases significantly after reports are passed on to the cabinet, suggesting that politicians change the topics they address. Second, we demonstrate that exposure to public opinion research alters politicians' substantive positions in the direction of majority opinion.