Dan Epps

So the Fourth Amendment just kind of takes 1791 common law.

Where it was and just kind of freezes it into place.

In my paper with Danielle Donfro, we sort of take a third approach, one that in part relies on your work, although sort of in a different direction.

Your work outside of the Fourth Amendment context also engages with your Fourth Amendment piece with James Stern.

And say, actually, courts should choose option B. They should say the answer to Justice Gorsuch's question about which one is neither.

Instead, they should do kind of basically, you know, either general law or you could just call it an evolving common law analysis and just say, what do we think the common law today, based on all these different sources we can look at, suggests about this?

And I think this opinion is best read, Justice Gorsuch does not clearly tell us, but I think this opinion is best read as actually choosing option three.

He looks at a case from 2014.

He looks at some 20th century cases.

And here, there's everyone, they seem to all, the old common law and the, you know, in the modern day, common law seem to point in the same direction.

And there's, as far as we can tell, you know, he cites one Montana case, there's no reason to think the Montana law points in a different direction.

So it's all going in the same direction.

And so the harder case would be where there's some conflict.

Like modern common law or particular jurisdictions, common law is clearly inconsistent with the

1791 rules.

So we will see.

But I mean, you know, would you at least concede that like all things equal, this is slightly better for the general approach?

You're not, you're not.

Sure.

Like, like, you know, if you had to pick what he believes.