Notes on Borrowing and Convergence
Robert L. Tsai
American University - Washington College of Law
Brooklyn Law School
October 31, 2011
Columbia Law Review Sidebar, Vol. 111, pp. 140-150, 2011
Brooklyn Law School, Legal Studies Paper No. 256
American University, WCL Research Paper No. 2011-29
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.
Number of Pages in PDF File: 13
Keywords: Fourth Amendment, exclusionary rule, criminal procedure, tort, remedies, borrowing, constitutional law, supreme courtAccepted Paper Series
Date posted: November 1, 2011
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