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Notes on Borrowing and Convergence

By Robert L. Tsai and Nelson Tebbe

Abstract

This is a response to Jennifer E. Laurin, \u22Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence,\u22 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court\u27s resort to tort-based concepts to limit the reach of the Fourth Amendment\u27s 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

Topics: Exclusionary rule, Constitutional Law, Criminal Procedure, Fourth Amendment, Supreme Court of the United States, Torts
Publisher: Scholarship@Cornell Law: A Digital Repository
Year: 2011
OAI identifier: oai:scholarship.law.cornell.edu:facpub-2657
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