Property or Expectations: A Struggle for the Soul of the Fourth Amendment

Pacific Legal Foundation seeks papers for a research workshop on the ongoing debate regarding a property-centered approach to the Fourth Amendment, to be held in Fall 2026 or early 2027 at our offices in Arlington, Virginia.

Background and Theme

The Fourth Amendment guarantees the right of the people to be secure in their “persons, houses, papers, and effects.” For decades, courts have interpreted this protection primarily through the lens of a person’s “reasonable expectation of privacy,” a test first articulated in Justice John Marshall Harlan’s concurrence in Katz v. United States, 389 U.S. 347, 360 (1967). See United States v. Jones, 565 U.S. 400, 406 (2012) (“Our later cases have applied the analysis of Justice Harlan’s concurrence in [Katz].”).

Yet a return to a property-centered approach to the Fourth Amendment has stirred in recent decades, complementing and competing with the Katz expectations regime. See, e.g., id.; Florida v. Jardines, 569 U.S. 1 (2013); Kyllo v. United States, 533 U.S. 27 (2001). Recent opinions by justices such as Clarence Thomas and Neil Gorsuch have likewise touted a property-centric Fourth Amendment as an originalist cure for the uncertain and unrooted world of privacy expectations. See Carpenter v. United States, 585 U.S. 296 (2018).

This workshop invites scholars to explore the theoretical, doctrinal, and practical implications of this property-based vision. How might a return to property principles reshape constitutional protections in an era of digital surveillance and data-driven policing? Could this approach offer greater clarity and predictability—or does it risk replicating the indeterminacy of Katz under a different guise?

Possible Topics

There is much to say on this topic, and much that has been said. Here are some general ideas that may help spur creative and novel scholarship on the subject:

1. Can or should a property regime supplant the dominant privacy expectations regime or simply offer a dual framework?
2. How should expectations, such as customs or implied licenses, play a role in a property-centered approach, and how do these concepts differ from the expectations analysis from Katz?
3. How does a property-centered approach treat digital assets and information?
4. How should a property-centered approach address the third-party doctrine?
5. What are the originalist cases for these competing theories of the Fourth Amendment?
6. Why are “papers” listed as expressly protected under the Fourth Amendment, and what does this tell us about the Amendment’s scope in the context of modern-day devices for storing or expressing information?
7. Does the “functional trespass” concept from Kyllo v. United States adequately address remote surveillance methods?
8. Does grounding Fourth Amendment protections in property raise concerns about inequality, given the uneven distribution of property across demographics?
9. How does a property-based regime interact with the administrative search doctrine?
10. How does this approach interact with hybrid spaces where ownership and control are fragmented?

Research Proposal Submission Details

Please submit a brief research proposal that describes your thesis or research question(s) and intended methodology and how your paper will contribute to the topic described above.

Proposals should be submitted by April 17, 2026, to Ethan Blevins at . Early proposal submission is encouraged. Proposals will be reviewed on a rolling basis, and approvals will allow authors to begin work early. Submissions after April 17 may be accepted if space at the workshop and budget permit.

Authors of accepted papers will receive a $2,500 honorarium. Authors will benefit from robust feedback on their draft papers.

Academic Workshop

Completed paper drafts are due 10 days before the date of the workshop but need not be in polished or publishable form. Authors will present their papers at the workshop that will be held at PLF’s office in Arlington, Virginia, in Fall 2026 or early 2027. Each paper author will be expected to formally comment on others’ papers. We will cover the cost of hotel accommodation and reasonable travel expenses to the workshop.