CATEGORIES 201: Categories are Made, Not Found

This post is the second in the series on Categories that I began late in February.  Today we begin with the first premise: categories are made, not found.  As lawyers, we often take for granted the applicability of pre-existing categories of law.  The doctrine of stare decisis has a stronghold on our legal thought processes.  History teaches us, however, that the law has the ability to evolve and redefine over time.  This phenomenon has been described by Anthony Amsterdam and Jerome Bruner in their book, Minding the Law.  They observe that “category systems derive from canonical general theories of the world and template narratives about life; when these theories or narratives are contorted too much or too obviously, when they come to be seen as endangered, we have culture wars and fierce debates about paradigm shifts…” 

Over the last few years, the Supreme Court has been engaged in just this sort of fierce debate over Fourth Amendment jurisprudence.  Historically, the Fourth Amendment has been categorized as a privacy interest, which the Court defined in Katz v. United States, 389 U.S. 347 (1967).  In 2012, however, the Court articulated a new category of Fourth Amendment protection related to property interests.  United States v. Jones, 132 S. Ct. 945 (2012).  Since then, the Court has been unable to reach strong consensus on its Fourth Amendment jurisprudence, as marked by cases such as Bailey v. United States, 133 S. Ct. 1031 (2013), Missouri v. McNeely, 133 S. Ct. 1552 (2013), Florida v. Jardines, 133 S. Ct. 1409 (2012), and Maryland v. King, 133 S. Ct. 1 (2012), among others.  This new category has prompted a fruit-basket turnover in terms of the alliances amongst the members of the Court, and resolution of Fourth Amendment cases is more unpredictable than ever.  Brooks Holland, Associate Professor of Law at the Gonzaga University School of Law, provides a concise analysis of the competing jurisprudential categories that have emerged since the Jones decision in his review of The Fourth Amendment in the October 2012 Term. 

The recent evolution of Fourth Amendment jurisprudence proves that the Court is willing to redefine categories of law, even well-established ones.  This evolution does not necessarily occur sua sponte, though.  Appellate advocates participate in the creation of new categories by breaking down existing barriers and reconstructing new ones.  Consider how each case begins with a given set of facts and law.  Within those facts and law, the advocate has the power to tap into pre-existing categories or create new ones.  If a pre-existing category supports the desired result, exploiting that category and relying heavily on principles of stare decisis would be beneficial to the advocate and would perpetuate the existing category.  By the same token, when the law or facts are not easily categorized in existing frameworks, or the existing framework demands a negative result, the advocate must deconstruct and redefine the boundaries in a way that is acceptable to the reader. 

These paradigm shifts, of course, take time.  Recall, that “category systems derive from canonical general theories of the world and template narratives about life.”  (Minding the Law)  Thus, to achieve success an advocate should attempt redefine the law by connecting new categories to life narratives that are already familiar to the reader, just as Justice Scalia in Jones was able to recategorize Fourth Amendment jurisprudence in terms of property doctrine that the Court already understood.