Response: Metaphor and Meaning in Trawling for Herring

Abstract

In this essay responding to Professor Jennifer Laurin’s essay, Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence, I advance Laurin’s project of recovering the exclusionary rule’s lost lineage through a critical reflection upon her doctrinal metaphors. Specifically, I parse the jurisprudential significance of Laurin’s idea of “trawling” in order to understand Herring v. United States and show how this metaphor successfully builds upon a second water-based metaphor animating Laurin’s analysis — the “hydraulics” of borrowing and convergence. By attending to both Laurin’s specific exclusionary rule arguments and to how Laurin’s conceptualization of “hydraulics” extends Professors Tebbe and Tsai’s constitutional borrowing framework, I maintain that Laurin persuasively demonstrates how constitutional tort doctrine has influenced exclusionary-rule jurisprudence. However, I further suggest that that Laurin’s account could be usefully sharpened by examining the vital role dissents have played in shaping the competing judicial schools in exclusionary rule doctrine. My own analysis is framed by a series “opinion maps” that visually chart the flow of relevant Supreme Court doctrine. After comprehensively “mapping” Laurin’s account, I present an alternate map of Herring’s origins that emphasizes the place of dissents in competing lines of doctrinal thought.

Keywords: Exclusionary Rule, Herring, Borrowing, Convergence, Dissent, Map