Legal Commentary

Epstein, Murphy, and Kerr On the Third-Party Doctrine

By Orin Kerr

Last year I published an article, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561 (2009), defending the widely-criticized Fourth Amendment rule that what a person discloses to a third party cannot retain Fourth Amendment protection. 

The Berkeley Technology Law Journal has now published three essays on the third party doctrine at least in part in response to my article. First, Richard Epstein wrote an essay offering his own take on the third-party doctrine, and at times responds directly to some of my ideas. Second, Erin Murphy wrote a short reply that is largely a critical response to my article. Finally, the BTLJ published a short response by me to both Epstein and Murphy.

Unfortunately, the BTLJ website is about a year out of date, so the exchange hasn?t been posted there yet. However, I have posted my short reply article here: Defending The Third-Party Doctrine: A Response To Epstein And Murphy, 24 Berkeley Tech. L.J. 1229 (2009).

If you have access to Westlaw or the paper journal, you can find the Epstein and Murphy articles here: Richard A. Epstein, Privacy and the Third Hand: Lessons from the Common Law of Reasonable Expectations, 24 Berkeley Tech. L.J. 1199 (2009); Erin Murphy, The Case Against the Case for the Third-Party Doctrine: A Response to Epstein and Kerr, 24 Berkeley Tech. L.J. 1239 (2009).

Full post as published by The Volokh Conspiracy on May 14, 2010 (boomark / email).