Friday, February 22, 2013

Sawers on American Trespass Law in 1791

Brian Sawers, a VAP at Maryland Law, has posted Keeping Up with the Joneses: Making Sure Your History Is Just as Wrong as Everyone Else's, which appears in Michigan Law Review First Impressions, 111(February 2013): 21.  Here is the abstract:
Both the majority and concurring opinions in United States v. Jones are wrong about the state of the law in 1791. Landowners in America had no right to exclude others from unfenced land. Whether a Fourth Amendment search requires a trespass or the violation of a reasonable expectation of privacy, government can explore open land without a search warrant.

In the United States, landowners did not have a right of action against people who entered open land without permission. No eighteenth-century case shows a remedy for mere entry. Vermont and Pennsylvania constitutionally guaranteed a right to hunt on open land. In several other states, statutes regulating hunting implied a public right to hunt on (and, by implication, enter) unfenced land.
 Hat tip: PropertyProf Blog

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