Document Type

Article

Publication Date

10-30-2011

Keywords

Exclusionary rule

Disciplines

Constitutional Law | Criminal Procedure | Fourth Amendment | Supreme Court of the United States | Torts

Abstract

This is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

Comments

This article predates Nelson Tebbe's affiliation with Cornell Law School.