Tuesday, September 14, 2010

Kozinski On Elitism

Thanks to the keen eye of a former student, I have the pleasure of posting this recent excerpt fom a dissenting opinion by Judge Kozinski. I confess this is not something I thought I would do. In the quote, the Judge refers to the "unconsious cultural elitism" of member of the judiciary. In many respects his views are similar to those of William J. Stuntz in "The
Distribution of Fourth Amendment Privacy," 67 G. W. L. Rev. 1264.

I think I would modify that for most law professors to read "conscious cultural elitism." Ironically, for the most part, we are not actually culturally elite.

"The panel authorizes police to do not only what invited
strangers could, but also uninvited children—in this case
crawl under the car to retrieve a ball and tinker with the
undercarriage. But there’s no limit to what neighborhood kids
will do, given half a chance: They’ll jump the fence, crawl
under the porch, pick fruit from the trees, set fire to the cat
and micturate on the azaleas. To say that the police may do
on your property what urchins might do spells the end of
Fourth Amendment protections for most people’s curtilage.
The very rich will still be able to protect their privacy with
the aid of electric gates, tall fences, security booths, remote
cameras, motion sensors and roving patrols, but the vast
majority of the 60 million people living in the Ninth Circuit
will see their privacy materially diminished by the panel’s ruling.
Open driveways, unenclosed porches, basement doors left
unlocked, back doors left ajar, yard gates left unlatched,
garage doors that don’t quite close, ladders propped up under
an open window will all be considered invitations for police
to sneak in on the theory that a neighborhood child might, in
which case, the homeowner “would have no grounds to complain.”

There’s been much talk about diversity on the bench, but
there’s one kind of diversity that doesn’t exist: No truly poor
people are appointed as federal judges, or as state judges for
that matter. Judges, regardless of race, ethnicity or sex, are
selected from the class of people who don’t live in trailers or
urban ghettos. The everyday problems of people who live in
poverty are not close to our hearts and minds because that’s
not how we and our friends live. Yet poor people are entitled
to privacy, even if they can’t afford all the gadgets of the
wealthy for ensuring it. Whatever else one may say about
Pineda-Moreno, it’s perfectly clear that he did not expect—
and certainly did not consent—to have strangers prowl his
property in the middle of the night and attach electronic tracking
devices to the underside of his car. No one does.

When you glide your BMW into your underground garage
or behind an electric gate, you don’t need to worry that somebody
might attach a tracking device to it while you sleep. But
the Constitution doesn’t prefer the rich over the poor; the man
who parks his car next to his trailer is entitled to the same privacy
and peace of mind as the man whose urban fortress is
guarded by the Bel Air Patrol. The panel’s breezy opinion is
troubling on a number of grounds, not least among them its
unselfconscious cultural elitism.

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