The Harvard Law Review Online Forum: Responding to Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476 (2011) and Christopher Slobogin, An Original Take on Originalism,125 Harv. L. Rev. F. 14 (2011)

Harvard Law Review

Online Forum

Defending Equilibrium-Adjustment

Orin S. Kerr :: I thank Professor Christopher Slobogin for responding to my recent Article, An Equilibrium-Adjustment Theory of the Fourth Amendment. My Article contended that much of today’s Fourth Amendment law can be understood as the product of equilibrium-adjustment. When changing technology and social practice threaten to considerably expand or restrict government power, courts tighten or loosen Fourth Amendment restrictions to restore the status quo level of government power. That is, courts account for changing technology by adjusting rules in an effort to restore the prior equilibrium of government power. Existing Fourth Amendment doctrine therefore reflects many decades of equilibrium-adjustment over time. READ MORE


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