Columbia Law Review Sidebar, Vol. 111, pp. 140-150, 2011
13 Pages Posted: 1 Nov 2011
Date Written: October 31, 2011
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.
Keywords: Fourth Amendment, exclusionary rule, criminal procedure, tort, remedies, borrowing, constitutional law, supreme court
Suggested Citation: Suggested Citation
Tsai, Robert L. and Tebbe, Nelson, Notes on Borrowing and Convergence (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. Available at SSRN: https://ssrn.com/abstract=1951879