October 20, 2011
Private: Law Students Joining the Constitutional Conversation as Citizen Amicus
government surveillance, Katz v. United States, United States v. Jones
By Andrew Guthrie Ferguson, a professor at the University of the District of Columbia’s David A. Clarke School of Law
In an effort to educate law students, the American Bar Association’s Criminal Justice Section has established “The Citizen Amicus Project” which invites current law students to contribute their own insights to a current Supreme Court case now being decided. The goal of this brand new project is to encourage law students to contribute to a national dialogue on constitutional issues that are relevant to their lives.
The project exists as a web-based constitutional debate about ongoing Supreme Court cases. Similar to formal amicus briefs, the Citizen Amicus Project seeks input from interested parties to help resolve constitutional issues. The goal is to provide a focused opportunity for law students to contribute to a national legal question that affects law students.
This first iteration of the Citizen Amicus Project focuses on the Fourth Amendment. Under current Fourth Amendment doctrine many of the Supreme Court’s determinations turn on what society considers objectively “reasonable.” What is objectively reasonable, of course, is a contested issue, and law students can weigh in on this standard as well as any other subset of Americans.
More specifically, the 2011-2012 Project focuses on the Fourth Amendment questions arising out of warrantless GPS surveillance. Almost all law students own cell phones, computers, and GPS devices that can be tracked and, thus, personally can understand the liberty interests at stake in warrantless tracking.
In November, the Supreme Court will hear United States v. Jones a case that raises questions of whether warrantless GPS tracking violates the Fourth Amendment. In Jones, the Supreme Court will review two specific questions:
1. Whether the warrantless use of a tracking device on Jones' vehicle to monitor its movements on public streets violated the Fourth Amendment, and
2. Whether the government violated Jones' Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.
A central legal question will be whether or not the use of the tracking device violated a reasonable expectation of privacy. “A reasonable expectation of privacy” exists as the threshold test for whether or not there has been a Fourth Amendment search. To determine whether an individual has a reasonable expectation of privacy, the Supreme Court has established a “twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” (See Katz v. United States, 389 U.S. 347 (1967) (Harlan, J. concurring)). It is this latter question of “what society is prepared to recognize as reasonable” that frames many Fourth Amendment questions and our initial project.
In Jones, the Supreme Court will have to determine what society is prepared to recognize as reasonable. We believe law students will have valuable insight on this question about the objective expectation of privacy. The Citizen Amicus Project gives voice to those insights in an effort to educate and engage law students.
Law students are encouraged to access the website and submit their views on the constitutional question. The hope is that law students will write 500-1000 word opinions about the constitutional question presented in a concise and accessible format. The result will be a collection of brief legal statements helpful to the Supreme Court and the general public. The opinions obviously will be the personal opinions of the student contributors, and not the ABA. The opinions will be accessible to the Supreme Court and all other citizens, but will not be formally filed as amicus briefs. The Citizen Amicus Project submissions will exist as an alternative repository of constitutional analysis from a citizen-student perspective. The top three submissions will be acknowledged with a certificate award.
Join the constitutional conversation.
The Citizen Amicus Project is directed by Andrew G. Ferguson, Professor at the David A. Clarke School of Law, University of the District of Columbia, and law students Joe Regalia (Michigan Law School), Peter Frechette (Washington College of Law, American University), and Kate Azevedo (Washington College of Law, American University).