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Notes on Borrowing and Convergence

13 Pages Posted: 1 Nov 2011  

Robert L. Tsai

American University - Washington College of Law

Nelson Tebbe

Cornell Law School

Date Written: October 31, 2011

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.

Keywords: Fourth Amendment, exclusionary rule, criminal procedure, tort, remedies, borrowing, constitutional law, supreme court

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

Robert L. Tsai (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, N.W.
Washington, DC 20016
United States
202.274.4370 (Phone)

HOME PAGE: http://www.wcl.american.edu/faculty/rtsai/

Nelson Tebbe

Cornell Law School ( email )

Myron Taylor Hall
Ithaca, NY 14853
United States
(607) 255-3506 (Phone)

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