Document Type
Article
Publication Date
6-2020
Journal Title
Columbia Law Review Forum
ISSN
0010-1958
Abstract
In District of Columbia v. Wesby, the Supreme Court recently considered whether a prudent officer had probable cause to make warrantless arrests at a festive house party. While reactions from scholars of criminal law are beginning to emerge, this Essay is the first to conceive of the decision through the lens of property theory. In this regard, the Essay offers two principal claims. First, on interpretive grounds, it contends that Wesby generated a de facto reallocation of property interests by abolishing both (a) the right held by the general public to access without fear of arrest those properties to which they reasonably believe they are welcome, and (b) the correlative duty of titleholders to respect reasonably mistaken access until the mistake is revealed. Second, on normative grounds, it questions the justificatory nature of this shift from an allocation that vindicates trust one person has placed in another to an allocation that allows someone else to violate that trust. The Essay concludes that perceiving Wesby as a dispute over property interests not only will deepen the developing assessments of the decision by scholars of criminal law, but, more broadly, prompt reflection on matters across the property spectrum as to the oft-concealed implications that allocative choices regarding property interests bring to bear on our ability to trust one another in the marketplace and in myriad social settings.
First Page
153
Last Page
177
Num Pages
25
Volume Number
120
Publisher
Columbia Law School
Recommended Citation
Timothy M. Mulvaney,
A World of Distrust,
120
Colum. L. Rev. F.
153
(2020).
Available at:
https://scholarship.law.tamu.edu/facscholar/1461