Eminent copyright scholar William Patry looks at the University of Chicago Cuteness Study--pictures of UofC undergrad women posted to HotOrNot.com to test whether they are, in fact, less attractive than those of other schools--and judges it to be fair use. One irate commentator demands sauce for the gander. Crescat scientia; vita excolatur!

The Supreme Court's opinion in the much-anticipated (by me) Georgia v. Randolph came down today. The question is whether the police may search a home when one resident invites them in while another is present and urges them to stay away Justice Souter wrote for himself, Stevens, Breyer, Ginsburg, and Kennedy to say that the police may not enter, that is that the right to exclude trumps the right to invite.

Justice Thomas dissented with a theory of his own that I had not expected and have not yet thought carefully about, suggesting that the entire issue could have been avoided by conceiving of this not as a general search but as a case where one person willingly turns over specific evidence of wrongdoing (rather than general authorization) to a police officer.

On the more common theory of the case, my sympathies lie with Justices Roberts and Scalia, with a few caveats. My own take is this:

While it is true that the doctrine of Fourth Amendment reasonableness has long split from common law property rules, that is no reason that the analytically separate issue of Fourth Amendment consent has to be so severed as well. (Roberts suggests that consensual searches are generally okay only because they are reasonable, not because the reasonableness requirement is waived, further evidencing his avoidance of the unconstitutional conditions doctrine. I'm not sure he's right, but I think I can accept his claim as true for argument's sake.)

The point is this. In cases like Randolph, we have a problem where two people with some rights to a common space disagree about the manner in which the space should be used. One person wants to invite a person in while another wants to exclude that person. In order to figure out whether the police officer has legally been invited in and to figure out whether his search has been legally consented to, we need a rule about who has the right to consent to what with respect to a joint property. Luckily for us, we already have such a rule! It is called the law of property. (And in this case, I think the rule is that one resident can invite somebody in over the objection of the other.)

I do not mean to imply that only trespasses can be unreasonable searches; quite the contrary. But since we generally accept that consensual searches of a home are reasonable, we need a doctrine for determining who can consent to the search of a home, and how. Since homes are generally controlled by people who own or lease them under property law, I suggest using the current rules for who controls a home's access to outsiders generally to determine who can consent to accept a particular outsider.

(The chatter about domestic violence law in the case is all a distraction, I think.)