Response to: Jennifer E. Laurin, Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence, 111 Colum. L. Rev. 670 (2011). Critics of the curtailment of the exclusionary rule worked by Herring v. United States have denounced the decision as Supreme Court activism posing as derivation from settled law. Professor Jennifer Laurin agrees that Herring breaks with exclusionary rule doctrine but disputes that it lacks any grounding in Court precedent. She says that Herring consummates a long courtship between the Leon good faith exception to the exclusionary rule and the Harlow standard for qualified immunity. Laurin premises her argument on an admittedly unorthodox depiction of qualified immunity that overstates the doctrine’s protective scope. Ironically, one effect of this overstatement could be to enable a doctrinal distortion of precisely the type Laurin cautions against. For by positing a substantive equivalence between Harlow rule and the significantly more protective Herring principle, Laurin invites judges to borrow from Herring to further restrict the availability of constitutional tort remedies. Part I of this response highlights some potential problems posed by Laurin’s heterodox characterization of the qualified immunity doctrine. Part II defends the conventional description of the doctrine as more accurate and normatively desirable. Part III shifts gears and amplifies Laurin’s warnings about the trans-substantive application of constitutional tort doctrine. Critics of the curtailment of the exclusionary rule worked by Herring v. United States have denounced the decision as Supreme Court activism posing as derivation from settled law. Professor Jennifer Laurin agrees that Herring breaks with exclusionary rule doctrine but disputes that it lacks any grounding in Court precedent. She says that Herring consummates a long courtship between the Leon good faith exception to the exclusionary rule and the Harlow standard for qualified immunity. Laurin premises her argument on an admittedly unorthodox depiction of qualified immunity that overstates the doctrine’s protective scope. Ironically, one effect of this overstatement could be to enable a doctrinal distortion of precisely the type Laurin cautions against. For by positing a substantive equivalence between Harlow rule and the significantly more protective Herring principle, Laurin invites judges to borrow from Herring to further restrict the availability of constitutional tort remedies. Part I of this response highlights some potential problems posed by Laurin’s heterodox characterization of the qualified immunity doctrine. Part II defends the conventional description of the doctrine as more accurate and normatively desirable. Part III shifts gears and amplifies Laurin’s warnings about the trans-substantive application of constitutional tort doctrine.
