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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
VOL. 112                     JANUARY4, 2012                    PAGES 1-15
John M. Greabe*
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 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).


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