Messerschmidt and Convergence in Action: A Reply to Comments on Trawling for Herring

Abstract

This short essay examines the Supreme Court's recent decision Fourth Amendment qualified immunity decision in Messerschmidt v. Millender through the framework of doctrinal borrowing and convergence set forth in my prior piece Trawling for Herring, and responds to incisive responses to that prior essay from Professors John Greabe, Colin Starger, Nelson Tebbe, and Robert Tsai. In short, Messerschmidt strongly exemplifies a continuing trend of convergence between exclusionary rule and constitutional tort doctrine, and does so in a manner that exhibits some of the most negative pathologies of doctrinal borrowing and convergence that Trawling identified.