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112 Colum. L. Rev. Sidebar 1 (2012)

handle is hein.journals/sidbarc112 and id is 1 raw text is: COLUMBIA LAW REVIEW SIDEBAR VOL. 112 JANUARY4, 2012 PAGES 1-15 OBJECTING AT THE ALTAR: WHY THE HERRING GOOD FAITH PRINCIPLE AND THE HARLOW QUALIFIED IMMUNITY DOCTRINE SHOULD NOT BE MARRIED John M. Greabe* Response to:Jennifer E. Laurin, Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence, 111 Colum. L. Rev. 670 (2011) INTRODUCTION Critics of the curtailment of the exclusionary rule worked by Herring v. United Statesi have denounced the decision as Supreme Court activism posing as derivation from settled law. Professor Jennifer Laurin agrees that Herring breaks with exclusionary rule doctrine2 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 rule3 and the Harlow standard for qualified immunity.4 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 the 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. * Professor, University of New Hampshire School of Law. Many thanks to John Jeffries and Dana Remus for their very helpful comments and suggestions, and to the staff of the Columbia Law Review for their excellent editorial assistance. Special thanks to Jennifer Laurin for writing such an excellent and provocative Essay. 1. 555 U.S. 135 (2009). 2. See Jennifer E. Laurin, Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence, 111 Colum. L. Rev. 670, 671 (2011) (arguing Herring was a significant and potentially sweeping reformulation of precedent). 3. See United States v. Leon, 468 U.S. 897, 913 (1984) (recognizing good faith exception to Fourth Amendment exclusionary rule after balancing costs and benefits of suppressing evidence seized by officers reasonably relying on faulty warrant). 4. See Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982) (recognizing a qualified immunity for executive officials based on balancing the rights to remedies for citizens with the public interest in encouraging the vigorous exercise of official authority). 1

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