Trawling for Herring: Lessons in doctrinal borrowing and convergence

Columbia Law Review

Volumn 111, Issue 3, 2011, Pages 670-744

  Laurin, Jennifer E ^a  

^a UNIVERSITY OF TEXAS SCHOOL OF LAW   (United States)

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EID: 79955414295     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (454)

1. 367 U.S. 643, 655 (1961).
2. 129 S. Ct. 695 (2009).
3. Albert W. Alschuler, Herring v. United States: A Minnow or a Shark?, 7 Ohio St. J. Crim. L. 463-89 (2009) [hereinafter Alschuler, Herring] ("No decision prior to Herring... had suggested or implied that the exclusionary rule should be limited in the way the Court proposed.");
4. Wayne R. La Fave, The Smell of Herring: A Critique of the Supreme Court's Latest Assault on the Exclusionary Rule, 99 J. Crim. L. & Criminology, 757-787 (2009) [hereinafter LaFave, Smell of Herring] ("The Court's efforts to find underpinnings for its holding in its prior decisions, by pretending that they support cost-benefit balancing and a 'culpability' distinction in the instant case, are no less than disingenuous.").
5. 468 U.S. 897, 922-26 (1984).
6. Herring, 129 S. Ct. at 701.
7. Leon, 468 U.S. at 922-23 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (adopting objective reasonableness standard).
8. Harlow, 457 U.S. at 818.
9. Nelson Tebbe & Robert L. Tsai, Constitutional Borrowing, 108 Mich. L. Rev. 459-463 (2010).
10. See id. at 462-69 (defining "borrowing" and exploring its reasons).
11. Dana Beldiman, Protecting the Form but Not the Function: Is U.S. Law Ready for a New Model?, 20 Santa Clara Computer & High Tech L.J. 529-39 (2004) (discussing borrowing between trademark and copyright);
12. Mirjan Damaska, The Uncertain Fate of Evidentiary Transplants: Anglo-American and Continental Experiments, 45 Am. J. Comp. L. 839-40 (1997) (discussing borrowing between civil and common law legal systems);
13. Henry Hansmann & Reinier Kraakman, The End of History for Corporate Law, 89 Geo. L.J. 439 (2001) (arguing a major trend in corporate law has been "worldwide convergence," with "core functional features of [the corporate] form" becoming "essentially identical" across jurisdictions);
14. Vicki C. Jackson, Constitutional Comparisons: Convergence, Resistance, Engagement, 119 Harv. L. Rev. 109-20 (2005) (discussing borrowing of foreign constitutional authority).
15. See, e.g., Tebbe & Tsai, supra note 9, at 461 (discussing borrowing of equality ideas in Lawrence v. Texas due process analysis); see also Beldiman, supra note 11, at 538 (discussing copyright and trademark convergence evolving from fact that the two doctrines frequently provide dual protection for any given item of intellectual property).
16. Jennifer E. Laurin, Rights Translation and Remedial Disequilibration in Constitutional Criminal Procedure, 110 Colum. L. Rev. 1002-29 (2010) [hereinafter Laurin, Rights Translation] (describing distinctive aspects of tort and criminal remedial regimes that influence doctrine constructed in each realm).
17. See, e.g., United States v. Campbell, 603 F.3d 1218, 1235-36 (10th Cir. 2010) (concluding "single instance of an arguably negligent" communication breakdown in police department does not demonstrate "recurring or systemic negligence" (emphasis and internal quotation marks omitted)); United States v. Gonzalez, 598 F.3d 1095, 1100-07 (9th Cir. 2010) (Bea, J., dissenting from denial of reh'g en banc) (arguing good faith exception should apply when "the police officer relied on... settled case law"); United States v. Amos, No. 3:08-CR-145, 2010 WL 3087435, at 22 (E.D. Tenn. Aug. 6, 2010) ("The Court sees no reason that an officer's objective reasonableness in relying on case law can be considered in a civil context... and not a criminal context... when the standards are the same."); Petition for a Writ of Certiorari at 13-14, Gonzalez, 598 F.3d 1095 (No. 10-82) [hereinafter Gonzalez Cert Petition] (arguing good faith exception should apply "when an officer reasonably relies on the court of appeals' then-binding precedent to conduct a search").
18. Surprisingly little systematic attention has been paid to these dynamics in what is otherwise a voluminous literature on the exclusionary rule. But see Alschuler, Herring, supra note 4, at 484-86 (noting interplay of exclusionary rule, "good faith" exception, and qualified immunity doctrine after Leon and Harlow, but asserting after brief discussion that Herring departs from prior symmetry with qualified immunity).
19. Philip M. Coffin & Paul F. Driscoll, Comment, The Development and Consequences of the "Good Faith" Exception to the Exclusionary Rule and the Qualified "Good Faith" Immunity from Liability Under Section 1983, 33 Me. L. Rev. 325-353 (1981) (noting, without sustained discussion, similar contours of good faith in exclusionary rule and qualified immunity contexts).
20. Most work that has placed the exclusionary rule and constitutional tort litigation in dialogue has focused on the issue of substitutability, rather than convergence, of remedial paths. See, e.g., Alschuler, Herring, supra note 4, at 500 (challenging, based on Herring, Court's suggestion that criminal litigation will fill gap in development of Fourth Amendment created by qualified immunity doctrine).
21. Donald Dripps, The Fourth Amendment, the Exclusionary Rule, and the Roberts Court: Normative and Empirical Dimensions of the Over-Deterrence Hypothesis, 85 Chi.-Kent L. Rev. 209-19 (2010) [hereinafter Dripps, Fourth Amendment and Roberts Court] (comparing capacities of tort law and exclusionary rule to deter);
22. David B. Owens, Comment, Fourth Amendment Remedial Equilibration: A Comment on Herring v. United States and Pearson v. Callahan, 62 Stan. L. Rev. 563-89 (2010) (arguing Herring and Court's qualified immunity doctrine will stunt constitutional development).
23. Thomas K. Clancy, The Irrelevancy of the Fourth Amendment in the Roberts Court, 85 Chi.-Kent L. Rev. 191 (2010) (predicting "the substantial elimination of Fourth Amendment litigation in the Roberts Court");
24. John C. Jeffries, Reversing the Order of Battle in Constitutional Torts, 2009 Sup. Ct. Rev. 115, 132-36 (discussing effect of diminished litigation on enforcement of Fourth Amendment).
25. Jennifer E. Laurin, Melendez-Diaz v. Massachusetts, Rodriguez v. City of Houston, and Remedial Rationing, 109 Colum. L. Rev. Sidebar 82 (2009) [hereinafter Laurin, Remedial Rationing], at http://columbialawreview.org/assets/sidebar/volume/109/82_Laurin.pdf (on file with the Columbia Law Review) (identifying trend of "remedial rationing" in Court's criminal procedure jurisprudence).
26. See supra notes 9-12 and accompanying text (discussing scholars' recognition of borrowing as frequent feature of common law legal traditions and American judicial reasoning).
27. Additionally, in examining doctrinal and remedial evolution from the vantage point of both criminal procedure and constitutional tort, the Essay contributes to the important but oft-neglected examination of criminal procedure's theoretical resonances with closely related but separately conceived fields of constitutional law and remedies.
28. Carol Steiker, "First Principles" of Constitutional Criminal Procedure: A Mistake?, 112 Harv. L. Rev. 680-684 (1999) (reviewing Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles (1997)) (describing criminal procedure scholarship as "too often isolated" and agreeing with Professor Amar's call for criminal procedure scholars "to recognize the important relationship between the constitutional regulation of the criminal justice system and the rest of constitutional law and theory").
29. 129 S. Ct. 1710 (2009); see also Davis v. United States, 131 S. Ct. 502 (2010) (granting certiorari on this issue).
30. See Joint Appendix at 64, Herring v. United States, 129 S. Ct. 695 (2009) (No. 07-513) (transcribing Herring's testimony about Anderson's involvement in the murder); see also Herring, 129 S. Ct. at 705 (Ginsburg, J., dissenting) (recounting Herring and Anderson's prior relationship).
31. Herring, 129 S. Ct. at 698.
32. Id.
33. Id.
34. Id.
35. United States v. Herring, 492 F.3d 1212, 1215 (11th Cir. 2007), aff'd, 129 S. Ct. 695 (2009).
36. United States v. Herring, 451 F. Supp. 2d 1290, 1292-93 (M.D. Ala. 2005), aff'd, 492 F.3d 1212 (11th Cir. 2007), aff'd, 129 S. Ct. 695 (2009).
37. Herring, 129 S. Ct. at 698.
38. Id.
39. Id. at 700.
40. Id. at 701-02.
41. Id. at 704.
42. Id. at 700-04.
43. See, e.g., Alschuler, Herring, supra note 4, at 486 (discussing Court's "ambiguous" adoption of recklessness standard); LaFave, Smell of Herring, supra note 4, at 763-70 (criticizing Court's use of precedents and deterrence analysis in relation to culpability standard).
44. 468 U.S. 897 (1984).
45. 480 U.S. 340 (1987).
46. 514 U.S. 1 (1995).
47. 438 U.S. 154 (1978).
48. See Alschuler, Herring, supra note 4, at 488-89 (discussing Leon and its progeny and asserting that "[n]o decision prior to Herring... had suggested or implied that the exclusionary rule should be limited in the way the Court proposed"); LaFave, Smell of Herring, supra note 4, at 761-64 (discussing precedents cited by Herring and concluding that they do not support principles attributed to them by majority opinion).
49. Leon, 468 U.S. at 923, 926.
50. Herring v. United States, 129 S. Ct. 695, 700 (2009).
51. Leon, 468 U.S. at 913-14; see also LaFave, Smell of Herring, supra note 4, at 760-61 (noting presence of magistrate in Leon was special circumstance absent in Herring). The companion case of Massachusetts v. Sheppard, 468 U.S. 981 (1984), also cited by the Herring majority, adds nothing to Leon's analytical framework on this score.
52. See, e.g., Model Penal Code § 2.02(2)(d) (1985) (defining "negligently" as "involv[ing] a gross deviation from the standard of care that a reasonable person would observe in the actor's situation"); Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 3 (2010) ("A person acts negligently if the person does not exercise reasonable care under all the circumstances.").
53. See Arizona v. Evans, 514 U.S. 1, 14-16 (1995) (holding "threat of exclusion of evidence could not be expected to deter [court clerks]" and analogizing judicial role to magistrate); Illinois v. Krull, 480 U.S. 340, 349-54 (1987) (reasoning that exclusionary rule would have no deterrent effect on legislators writing statutes or police officers enforcing those statutes, and analogizing legislature to magistrate); see also LaFave, Smell of Herring, supra note 4, at 760-61 (discussing special features of Krull and Evans distinguishing them from law enforcement misconduct presented in Herring).
54. See Evans, 514 U.S. at 14-16 (finding police acted reasonably); Krull, 480 U.S. at 349 (finding officers acted in "reasonable reliance" on statute).
55. See Alschuler, Herring, supra note 4, at 486-88 (asserting Franks's consideration of subjective state of mind was an "exception" to general rule of objective criminal procedure standards and criticizing Herring's reliance on it); LaFave, Smell of Herring, supra note 4, at 766-68 (criticizing Herring majority's purported reliance on Franks).
56. Franks v. Delaware, 438 U.S. 154, 171 (1978).
57. Id. at 165-71 (enumerating six considerations motivating rule of "limited scope," five of which concern the magistrate role, and only one of which expressly concerns deterrent rationale of exclusionary rule).
58. See, e.g., Missouri v. Seibert, 542 U.S. 600, 625-26 (2004) (O'Connor, J., dissenting) (observing "evidentiary difficulties have led us to reject an intent-based test in several criminal procedure contexts"); Whren v. United States, 517 U.S. 806, 811-12 (1996) (declining to review racial motivations for allegedly pretextual stop, and asserting "[n]ot only have we never held, outside the context of inventory search or administrative inspection... that an officer's motive invalidates objectively justifiable behavior under the Fourth Amendment; but we have repeatedly held and asserted the contrary"); United States v. Leon, 468 U.S. 897, 922 n.23 (1984) ("'[S]ending state and federal courts on an expedition into the minds of police officers would produce a grave and fruitless misallocation of judicial resources.'" (quoting Massachusetts v. Painten, 389 U.S. 560, 565 (1968) (White, J., dissenting))).
59. George E. Dix, Subjective "Intent" as a Component of Fourth Amendment Reasonableness, 76 Miss. L.J. 373 (2006) (contesting standard claim that Court's Fourth Amendment jurisprudence does or should reject incorporation of subjective standards).
60. See United States v. Calandra, 414 U.S. 338, 354 (1974) (embracing deterrence over rights-based or judicial integrity rationales offered in Mapp).
61. Herring v. United States, 129 S. Ct. 695, 702 (2009).
62. Id. at 708 (Ginsburg, J., dissenting).
63. Whether this system model affects the deterrence calculus vis-a-vis negligent police conduct will of course vary depending upon the nature of the error. Some unreasonable but unintentional behavior can be anticipated: An easy example is an unconstitutional search resulting from an officer's inadequate understanding of existing Fourth Amendment law, which may be avoided by legal instruction. A more debatable example is carelessness in evaluating whether a given factual context supports search or arrest.
64. Wayne R. LaFave, The Fourth Amendment in an Imperfect World: On Drawing "Bright Lines" and "Good Faith," 43 U. Pitt. L. Rev. 307-46 (1982) [hereinafter LaFave, Bright Lines] (discussing variations in circumstances that might permit deterrence of "reasonable" police mistakes). But Herring's culpability analysis admits of no such nuance.
65. Brian A. Liang, Medical Malpractice: Do Physicians Have Knowledge of Legal Standards and Assess Cases as Juries Do?, 3 U. Chi. L. Sch. Roundtable 59-93 (1996) (advancing such an argument based on empirical evidence in medical malpractice context);
66. Gary T. Schwartz, The Ethics and the Economics of Tort Liability Insurance, 75 Cornell L. Rev. 313-47 (1990) (outlining standard critique of economic theories of tort liability's capacity to deter negligence).
67. See supra notes 43, 45, and accompanying text (noting Leon, Krull, and Evans all concerned conduct falling short of negligence).
68. Herring, 129 S. Ct. at 702.
69. See Alschuler, Herring, supra note 4, at 487 (asserting standard of "deliberate, reckless, and grossly negligent misconduct" does not appear in prior decisions of the Court).
70. See United States v. Leon, 468 U.S. 897, 907-08, 919 (1984) (observing exclusionary rule produces windfall where officers "have acted in objective good faith" and that to be deterred police misconduct must be "'at the very least negligent'" (quoting Michigan v. Tucker, 417 U.S. 433, 447 (1974))); Alschuler, Herring, supra note 4, at 488-89 (asserting Herring ratcheted culpability standard beyond prior cases); see also Arizona v. Evans, 514 U.S. 1, 15-16 (1995) ("There is no indication that the arresting officer was not acting objectively reasonably when he relied upon the police computer record."); Illinois v. Krull, 480 U.S. 340, 355-57 (1987) (stating the case concerned police officials behaving in an "objectively reasonable" manner).
71. Alschuler, Herring, supra note 4, at 489-95. One such example arose just months before the Herring decision in Arizona v. Gant, which affirmed suppression of evidence in a case where police had unquestionably relied upon a reasonable, then-prevailing judicial interpretation of the legality of their actions. 129 S. Ct. 1710, 1722-24 (2009). The police officer responsible for the offending search in Gant testified at the suppression hearing that he conducted the search in the manner that he did "[b]ecause the law says we can do it," which the Court's opinion itself bears out as a belief that was almost certainly objectively reasonable. Id. at 1715.
72. Herring, 129 S. Ct. at 702-03 (stating "exclusionary rule serves to deter... recurring or systemic negligence," and giving example of deficient departmental warrant system).
73. Id. at 702-704.
74. See id. at 702 (stating "as laid out in [the Court's] cases" that showing of "recurring or systemic negligence" will "in some circumstances" support granting a motion to suppress).
75. See LaFave, Smell of Herring, supra note 4, at 784 (asserting that "systemic negligence" was "a term never before used by the Supreme Court").
76. See, e.g., Illinois v. Krull, 480 U.S. 340, 352 n.8 (1987) (declining "to assume now that there exists a significant problem of legislators who perform their legislative duties with indifference to the constitutionality of the statutes they enact," but stating that "[i]f future empirical evidence ever should undermine that assumption, our conclusions may be revised accordingly"); United States v. Leon, 468 U.S. 897, 916, 918 (1984) (noting absence of evidence that magistrates or judges were "inclined to ignore or subvert" Fourth Amendment in deciding warrant applications, or that police engaged in magistrate shopping in course of obtaining warrants).
77. See, e.g., Herring, 129 S. Ct. at 708 (Ginsburg, J., dissenting) (discussing deficiencies in Dale County warrant procedures); Arizona v. Evans, 514 U.S. 1, 15 (1995) (discussing suppression hearing testimony concerning court clerk's practices).
78. See Alschuler, Herring, supra note 4, at 488-89 (asserting generally "[n]o decision prior to Herring... had suggested or implied that the exclusionary rule should be limited in the way the Court proposed"); LaFave, Smell of Herring, supra note 4, at 784 (referring to term "systemic negligence" in Herring opinion as "a term never before used by the Supreme Court").
79. Herring, 129 S. Ct. at 700.
80. Leon, 468 U.S. at 923 n.24.
81. Id.
82. Herring, 129 S. Ct. at 699. That this was the thrust of the Leon Court's view is further supported by its citation to Whiteley v. Warden, see Leon, 468 U.S. at 923 n.24., which emphasized that while "police officers called upon to aid other officers in executing arrest warrants are entitled to assume" that their colleagues acted reasonably with regard to obtaining a warrant, "an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest." 401 U.S. 560, 568 (1971).
83. In other words, it might sensibly be argued that the Dale County clerk will not be meaningfully deterred from carelessness by suppression when she has committed error that causes Coffee County to violate the Fourth Amendment, chiefly because she is less likely to anticipate that her careless conduct will affect the work of actors with whom she does not routinely interact.
84. A curious feature of the Court's distortion of this facet of Leon is the apparent lack of payoff for its sleight of hand. Because of the rule ultimately invoked by the Court-that suppression requires a culpability showing that exceeds negligence-the issue of Coffee County's good faith is moot: Dale County's negligence, even if imputed to its neighbor, could not justify suppression. Why, then, play fast and loose with Leon to such little effect? One answer may lie in the "systemic error" prong of the Court's new standard, and the Court's desire to rebut any suggestion that such conduct was discernable in Herring's case. If the reasonableness of Coffee County's conduct was beyond dispute, Dale County's foul-ups were arguably isolated. See Herring, 129 S. Ct. at 702 ("As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level."). The Court's views on individuation of fault may also, however, carry implications for interpreting Herring's broader impact on exclusionary rule doctrine, as discussed infra Part III.A.
85. Herring, 129 S. Ct. at 698; see also id. at 704 ("[W]hen police mistakes are the result of negligence such as that described here,... any marginal deterrence does not 'pay its way.'" (emphasis added)). For scholarly consideration of the view that Herring's holding is limited by this narrow set of facts, see Alschuler, Herring, supra note 4, at 472-81 (summarizing debate surrounding possible narrower reading of Court's holding in Herring).
86. Herring, 129 S. Ct. at 698;
87. Craig M. Bradley, Two and a Half Cheers for the Court, Trial, Aug. 2009, at 48-49 (characterizing Court's discussion of attenuation as "crucial" to Herring);
88. Craig M. Bradley, Red Herring or the Death of the Exclusionary Rule?, Trial, Apr. 2009, at 52-54 (characterizing Herring as only a "minor" "chip out of the exclusionary rule" because "most illegal searches will not be attenuated from the error that caused them").
89. Albert Alschuler has made this point in far pithier terms than I could achieve: The Herring Court's "big blast" statements are consistent with its "little blast" statement. Indeed, they seem to swallow it. A monarch's decree might announce in its opening paragraph that all bachelors must report for induction. It might explain later that bachelors must report because they are men, and earlier decrees, properly understood, establish that all men must report. The monarch's mode of expression would be odd, but his decree would seem to leave no room for a subordinate authority to conclude that married men may stay home.
90. Alschuler, Herring, supra note 4, at 475.
91. Herring, 129 S. Ct. at 698.
92. Id. at 702.
93. See id. at 700-02 ("Indeed, exclusion has always been our last resort, not our first impulse, and our precedents establish important principles that constrain application of the exclusionary rule." (citation and internal quotation marks omitted)).
94. See id. at 698, 699, 702 (using the term, without elaboration, on three occasions).
95. See LaFave, Smell of Herring, supra note 4, at 771-83 (exploring possible meanings of unexplained references to attenuation in Herring).
96. See, e.g., United States v. Ceccolini, 435 U.S. 268, 279-80 (1978) (finding attenuation where "[s]ubstantial periods of time elapsed"); Wong Sun v. United States, 371 U.S. 471, 491-92 (1963) (finding attenuation in part based on passage of time).
97. See Hudson v. Michigan, 547 U.S. 586, 593 (2006) (finding attenuation "when, even given a direct causal connection, the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained").
98. See supra note 71 and accompanying text (noting deterrence rationale has less purchase in circumstances such as those of the Dale County clerk).
99. 468 U.S. 897 (1984).
100. 367 U.S. 643 (1961).
101. See, e.g., Stone v. Powell, 428 U.S. 465, 493 (1976) (affirming exclusionary rule's application in criminal trials and on direct review, while rejecting rule as premise for habeas claim).
102. See id. at 496-502 (Burger, C.J., concurring) (arguing that overruling rule "or limiting its scope to egregious, bad-faith conduct" would inspire creation of statutory alternatives); id. at 538 (White, J., dissenting) (arguing rule should be modified to prevent application where evidence was seized by officer acting reasonably and in good faith); Brown v. Illinois, 422 U.S. 590, 608-12 (1975) (Powell, J., concurring in part) (suggesting consideration of "nature of th[e] taint" and "rule's deterrent purposes" in applying exclusionary rule); United States v. Peltier, 422 U.S. 531, 535-38 (1975) ("[J]udicial integrity is also not offended if law enforcement officials reasonably believed in good faith that their conduct was in accordance with the law " (internal quotation marks omitted)).
103. 462 U.S. 213, 216-17 (1983) (noting Court ordered reargument to explore adoption of good faith exception to exclusionary rule, but opting not to rule on that ground).
104. See supra note 15 (surveying commentator response to Court's use of "borrowing" from constitutional tort doctrine).
105. 367 U.S. 643 (1961).
106. Lucas A. Powe, The Warren Court and American Politics 195 (2000) (asserting Mapp "set in motion the criminal procedure revolution of the 1960s");
107. Jerold H. Israel, Selective Incorporation: Revisited, 71 Geo. L.J. 253-253 (1982) (describing "the Warren Court's criminal procedure revolution").
108. 338 U.S. 25 (1949), overruled by Mapp, 367 U.S. 643.
109. Mapp, 367 U.S. at 655.
110. See id. at 672-74, 680, 685 (Harlan, J., dissenting) (arguing issue of whether to overrule Wolf was not presented to the Court, Court's holding contravened practice of over half the states, and no rationale for holding garnered five votes).
111. Henry P. Monaghan, The Supreme Court, 1974 Term-Foreword: Constitutional Common Law, 89 Harv. L. Rev. 1-28 n.145 (1975) (characterizing Mapp's posture toward states not as seeking consonance with emerging trend, but as "enforc[ing] the exclusionary rule... [w]hen a still significant number of states... refused to act").
112. Thomas Y. Davies, An Account of Mapp v. Ohio that Misses the Larger Exclusionary Rule Story, 4 Ohio St. J. Crim. L. 619-32 (2007) [hereinafter Davies, An Account of Mapp] (reviewing Carolyn N. Long, Mapp v. Ohio: Guarding Against Unreasonable Searches and Seizures (2006)) (recounting how Mapp combined with other forces to "scare and incite" the public, coalescing over time with a broader backlash against the Warren Court's criminal procedure and civil rights agenda).
113. Richard Nixon, RN: The Memoirs of Richard Nixon 419-20 (1978) (attributing attraction to Warren Burger as candidate for Chief Justice to 1967 U.S. News and World Report article featuring comments by Burger hostile to Warren Court criminal procedure decisions);
114. Powe, supra note 91, at 482-83 (describing Burger's status as one of most "prominent critic[s] of the Warren Court... in the judiciary" and his writings on criminal justice as central to Nixon's appointment reasoning); Davies, An Account of Mapp, supra note 95, at 632-33 (recounting importance of opposition to exclusionary rule in Nixon judicial appointments strategy).
115. See Bob Woodward & Scott Armstrong, The Brethren: Inside the Supreme Court 429, 521 (2005) (describing Burger's record of opposition to exclusionary rule as an appeals court judge prior to elevation to Supreme Court).
116. Warren Burger, Who Will Watch the Watchmen?, 14 Am. U. L. Rev. 1 (1964) (discussing exclusionary rule's failure to achieve its stated objectives).
117. See, e.g., The Supreme Court in Conference (1940-1985): The Private Discussions Behind Nearly 300 Supreme Court Decisions 487 (Del Dickerson ed., 2001) [hereinafter Supreme Court in Conference] (recounting, in conference notes of Justices Brennan and Douglas for Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), Chief Justice Burger as stating at conference that Bivens provides "a good first step toward abolishing the exclusionary rule"); Woodward & Armstrong, supra note 97, at 521 (discussing Burger's "search[] for cases that would provide an occasion for striking down or drastically modifying the exclusionary rule").
118. Bivens, 403 U.S. 388. It was particularly notable that the Chief Justice expressed these views in Bivens, a constitutional tort case that did not raise or directly implicate criminal Fourth Amendment remedies in any way. The opinion not only shows the concerted nature of his efforts but also presages the confluence of criminal and civil Fourth Amendment thinking that was to characterize the exclusionary rule's evolution.
119. Id. at 412 (Burger, C.J., dissenting).
120. Id. at 413-15 (asserting "the exclusionary rule has rested on the deterrent rationale" and rejecting competing rationales).
121. Id. at 418.
122. 414 U.S. 338 (1974).
123. Id. at 354.
124. Id.
125. Id.
126. Id.
127. See id. at 349-52 (weighing deterrent benefits against law enforcement costs in deciding whether to extend exclusionary rule to grand jury proceedings).
128. Id. at 348 n.5 (internal quotation marks omitted).
129. Id. at 351.
130. See United States v. Janis, 428 U.S. 433, 450 n.22 (1976) (collecting more than a dozen studies published prior to 1976); Comptroller Gen. of the U.S., Impact of the Exclusionary Rule on Federal Criminal Prosecutions 1 (1979) (reporting empirical data on impact of exclusionary rule on criminal prosecutions drawn from 2,804 cases from July 1 through August 31, 1978); Nat'l Inst. of Justice, The Effects of the Exclusionary Rule: A Study in California 18 (1982) (reporting the exclusionary rule has significant impact on state felony cases in Southern California).
131. Thomas Y. Davies, A Hard Look at What We Know (and Still Need to Learn) About the "Costs" of the Exclusionary Rule: The NIJ Study and Other Studies of "Lost" Arrests, 1983 Am. B. Found. Res. J. 611-17 (noting National Institute of Justice 1982 study of exclusionary rule in California cast doubt on 1979 Comptroller General study finding exclusionary rule had no effect on police conduct);
132. Peter F. Nardulli, The Societal Cost of the Exclusionary Rule: An Empirical Assessment, 1983 Am. B. Found. Res. J. 585-90 (reviewing various conflicting studies in 1970s and 1980s).
133. See Calandra, 414 U.S. at 351-52 ("We... decline to embrace a view that would achieve a speculative and undoubtedly minimal advance in the deterrence of police misconduct at the expense of substantially impeding the role of the grand jury."). Moreover, Calandra suggested that far more "speculative" insights would be tolerated in the Court's calculation of the exclusionary rule's costs. See id. at 349-50 (asserting, without empirical evidence, that extending exclusionary rule to grand jury posed "evident" threat to proceedings, and that delay and complication were "probable" results); see also Schneckloth v. Bustamonte, 412 U.S. 218, 267-69 & n.26 (1973) (Powell, J., concurring) (noting, together with Chief Justice and Justice Rehnquist, empirical research challenging deterrence rationale for exclusionary rule and asserting without empirical data that "[w]hatever the rule's merits on an initial trial and appeal... the case for collateral application of the rule is an anemic one").
134. Janis, 428 U.S. at 447-53 & nn.18-25.
135. Id. at 453 (quoting Elkins v. United States, 364 U.S. 206, 218 (1960)).
136. Stone v. Powell, 428 U.S. 465, 489 (1976).
137. Id. at 492.
138. Id. at 492 n.32.
139. Id. at 492-93;
140. see also California v. Minjares, 443 U.S. 916, 926 (1979) (Rehnquist, J., dissenting from denial of application for stay) (asserting "belie[f]," without evidence, that civil juries in Fourth Amendment suits return awards sufficient to deter police misconduct).
141. Donald Dripps, Living with Leon, 95 Yale L.J. 906-16 & n.63 (1984) [hereinafter Dripps, Living with Leon] (observing that Leon Court responded to "overwhelming empirical evidence confirming the [exclusionary] rule's negligible cost in terms of convictions lost by suppression rulings" with "apologetic" assertions based on speculative empirical assumptions).
142. See, e.g., Stone, 428 U.S. at 494 (holding denial of suppression was not cognizable basis for habeas claim); United States v. Janis, 428 U.S. 433, 454 (1976) (holding exclusionary rule unavailable in civil case); Walder v. United States, 347 U.S. 62, 65-66 (1954) (holding exclusionary rule inapplicable to impeachment evidence).
143. See, e.g., United States v. Peltier, 422 U.S. 531, 561-62 (1975) (Brennan, J., dissenting) ("If a majority of my colleagues are determined to discard the exclusionary rule in Fourth Amendment cases, they should forthrightly do so, and be done with it. This business of slow strangulation of the rule... demeans the adjudicatory function, and the institutional integrity of this Court.").
144. Philip Halpern, Federal Habeas Corpus and the Mapp Exclusionary Rule After Stone v. Powell, 82 Colum. L. Rev. 1-14 (1982) (criticizing cost-benefit analysis);
145. James Boyd White, Forgotten Points in the "Exclusionary Rule" Debate, 81 Mich. L. Rev. 1273-83 & n.34 (1983) (same).
146. Judge Henry Friendly was perhaps the most prominent early spokesperson for the concept, writing in 1965 that the deterrent aims of the exclusionary rule would be adequately served "if the police were denied the fruit of activity intentionally or flagrantly illegal-where there was no reasonable cause to believe there was reasonable cause.
147. Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L. Rev. 929-52 (1965).
148. The Fifth Circuit was the first federal court to formally adopt a "good faith exception" to the exclusionary rule in United States v. Williams, 622 F.2d 830, 847 (5th Cir. 1980) (en banc). Several states and lower federal courts followed suit. See, e.g., Ariz. Rev. Stat. Ann. § 13-3925 (2010) ("The trial court shall not suppress evidence... if the court determines that the evidence was seized by a peace officer as a result of a good faith mistake ...."); Colo. Rev. Stat. § 16-3-308 (2006) (enforcing similar provision); United States v. Nolan, 530 F. Supp. 386, 396-400 (W.D. Pa. 1981) (denying motion to suppress evidence where inspector who obtained it has "endeavored to comply with the spirit" of knock-and-announce rule); United States v. Wyler, 502 F. Supp. 969, 973-74 (S.D.N.Y. 1980) (denying evidence suppression where "documents 'found' in a good faith warrantless search [led] to the identity of a victim in a previously undiscovered crime"); State v. Mincey, 636 P.2d 637, 649-50 (Ariz. 1981) (affirming admission of evidence seized illegally but in good faith reliance on police officer's understanding of law); People v. Eichelberger, 620 P.2d 1067, 1071 n.2 (Colo. 1980) (noting purpose of exclusionary rule "is to deter willful or flagrant actions by the police" rather than "reasonable" ones); People v. Adams, 422 N.E.2d 537, 540-42 (N.Y. 1981) (affirming admission of evidence obtained through good faith "reasonable" police action); Holloman v. Commonwealth, 275 S.E.2d 620, 622 (Va. 1981) (claiming to be "persuaded by the logic in Williams" without finding good faith exception to apply to this case).
149. Attorney Gen.'s Task Force on Violent Crime, U.S. Dep't of Justice, Final Report 55 (1981) ("We recommend that the Attorney General instruct United States Attorneys and the Solicitor General to urge this rule in appropriate court proceedings, or support federal legislation establishing this rule, or both.").
150. See The Exclusionary Rule Bills: Hearings on S. 101, S. 751, and S. 1995 Before the Subcomm. on Criminal Law of the S. Comm. on the Judiciary, 97th Cong. 8-10, 207, 281, 610 (1982) (statements of D. Lowell Jensen, Assistant Att'y Gen., Criminal Division, U.S. Department of Justice; Jim Smith, Att'y Gen. of Florida; Norman Darwick, Executive Director, International Association of Chiefs of Police; David L. Armstrong, President, National District Attorneys Association) (reflecting endorsement of Attorney General's formulation of good faith exception by, among others, state attorneys general and police and district attorney associations).
151. See Stone, 428 U.S at 496-502 (Burger, C.J., concurring) (contending "the exclusionary rule has been operative long enough to demonstrate its flaws" and arguing for "modify[ing] its reach"); id. at 536-42 (White, J., dissenting) (favoring "substantially modified [rule] ... to prevent its application ... where the evidence at issue was seized by an officer acting in the good-faith belief that his conduct comported with existing law"); Brown v. Illinois, 422 U.S. 590, 606-16 (1975) (Powell, J., concurring in part) (arguing where conduct was not at least negligent, "the deterrence rationale of the exclusionary rule does not obtain, and I can see no legitimate justification for depriving the prosecution of reliable and probative evidence"); see also Peltier, 422 U.S. at 537-39 (asserting, on question of whether the Fourth Amendment may be applied retroactively, "'[t]he deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct .... Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.'" (quoting Michigan v. Tucker, 417 U.S. 433, 447 (1974))).
152. See Supreme Court in Conference, supra note 98, at 489 (indicating, in Justice Brennan's conference notes for Stone, 428 U.S. 465, that Justice Blackmun was open to restricting exclusion to instances of "blatant disregard of the rules" and Justice Marshall was "receptive to a limitation of the exclusionary rule").
153. Stone, 428 U.S. at 537 (White, J., dissenting).
154. Id. at 538.
155. 365 U.S. 167, 184 (1961) (interpreting § 1983 to permit private plaintiffs to sue state and local officials who violated federal constitutional or statutory rights while "'clothed with the authority of state law'" (quoting United States v. Classic, 313 U.S. 299, 326 (1941))).
156. 42 U.S.C. § 1983 (2006).
157. See Butz v. Economou, 438 U.S. 478, 526-27 (1978) (Rehnquist, J., concurring in part and dissenting in part) (noting "[t]he steady increase in litigation, much of it directed against governmental officials and virtually all of which could be framed in constitutional terms, cannot escape the notice of even the most casual observer," and this threat of litigation may deter officials from taking socially desirable action); Civil Rights Improvements Act of 1977: Hearings on S. 35 Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 95th Cong. 1 (1978) (statement of Sen. Birch Bayh, Chairman, Subcomm. on the Constitution) (attributing "congested court calendars and unacceptable delays in the adjudication of important cases" to growth of federal law and increase of federal case filings, particularly under § 1983).
158. Ruggero J. Aldisert, Judicial Expansion of Federal Jurisdiction: A Federal Judge's Thoughts on Section 1983, Comity and the Federal Caseload, 1973 L. & Soc. Ord. 557-563 (calling post-Monroe filings "deluge" and noting 1,110% rise in cases brought under § 1983 between 1960 and 1970).
159. Others have observed that the rights "retrenchment" that is often attributed to the post-Warren era actually began before its close.
160. Yale Kamisar, The Warren Court (Was It Really So Defense-Minded?), The Burger Court (Is It Really So Prosecution-Oriented?), and Police Investigatory Practices, in The Burger Court: The CounterRevolution That Wasn't 62, 67 (Vincent Blasi ed., 1983) (arguing "there were two Warren Courts" and "[i]n its final years 'the Warren Court' ... was not the same Court that had produced Miranda or Mapp");
161. Carol S. Steiker, Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 Mich. L. Rev. 2466, 2495-503 (1996) [hereinafter Steiker, Counter-Revolution] (contending "the Warren Court's own Fourth Amendment cases set the stage for these later developments").
162. Pierson v. Ray, 386 U.S. 547, 555, 557 (1967). Justice Douglas dissented only from that portion of the opinion that granted an absolute immunity to judges sued under § 1983. Id. at 558-67 (Douglas, J., dissenting).
163. Id. at 555 (majority opinion) (holding that § 1983 had not abrogated common law immunities). As others have noted, however, the Court's historical account may be tenuous. See, e.g., Alschuler, Herring, supra note 4, at 503-06 (arguing "history offered no support" for grant of qualified immunity to police in Pierson); Ann Woolhandler, Patterns of Official Immunity and Accountability, 37 Case W. Res. L. Rev. 396, 413 (1987) (refuting notion of contemporary immunity doctrine as possessing "a long historical pedigree").
164. Scheuer v. Rhodes, 416 U.S. 232, 247-48 (1974).
165. Id.
166. Id. at 240.
167. See Procunier v. Navarette, 434 U.S. 555, 562-66 (1978) (extending qualified immunity to prison officials); Wood v. Strickland, 420 U.S. 308, 318-20 (1976) (school officials);
168. O'Connor v. Donaldson, 422 U.S. 563, 577 (1975) (state mental hospital superintendent); see also Procunier, 434 U.S. at 568-69 (Stevens, J., dissenting) (asserting Procunier, "coupled with O'Connor v. Donaldson ... strongly implies that every defendant in a § 1983 action is entitled to assert a qualified immunity from damage liability," and dissenting as to application of Court's standard but expressing "no quarrel with the extension of a qualified immunity defense to all state agents" (citation omitted)). In Butz v. Economou, the Court held that identical immunity principles apply in both § 1983 as well as Bivens actions against federal officers. 438 U.S. 478, 497-500 (1978).
169. Wood, 420 U.S. at 322.
170. Peter Schuck, whose seminal theoretical explication of qualified immunity would be cited by the Court in Harlow, was among those who expressed concern that the doctrine operated to defeat legitimate claims and "reduce [an official's] willingness to pursue the objectives that his agency is required to advance."
171. Peter H. Schuck, Suing Our Servants: The Court, Congress, and the Liability of Public Officials for Damages, 1980 Sup. Ct. Rev. 281, 285-87;
172. Jon O. Newman, Suing the Lawbreakers: Proposals to Strengthen the Section 1983 Damage Remedy for Law Enforcers' Misconduct, 87 Yale L.J. 447, 459-62 (1978) (describing hurdle of good faith defense).
173. Wood, 420 U.S. at 321 (holding qualified immunity standard "contains elements of both" subjective and objective test).
174. See, e.g., Schuck, supra note 140, at 327 ("In practice, subjective bad faith or improper motivation is infrequently found. The availability of the immunity ordinarily turns on an assessment of the objective circumstances in which the disputed action was taken ... ." (footnote omitted)).
175. See, e.g., Halperin v. Kissinger, 606 F.2d 1192, 1214 (D.C. Cir. 1979) (Gesell, J., concurring) (describing burden of answering suit and participating in discovery, given that "[i]t is not difficult for ingenious plaintiff's counsel to create a material issue of fact on some element of the immunity defense where subtle questions of constitutional law and a decisionmaker's mental processes are involved"), aff'd per curiam by an equally divided Court, 452 U.S. 713 (1981).
176. Schuck, supra note 140, at 326-27, 330 (noting the "qualified 'good-faith' immunity standard ... is pregnant with risk[:] ... a rather small risk that he will ultimately be held liable, a somewhat higher risk that the immunity will ultimately be denied, and a substantial risk that a full-dress trial will be necessary to establish its applicability and scope").
177. See Halperin, 606 F.2d at 1214 (Gesell, J., concurring) (arguing the burden of litigating subjective motivations has "obvious" negative "effect ... upon the willingness of individuals to serve their country"). Writing in concurrence in Butz v. Economou, Justice Rehnquist argued: The fact that the claim fails when put to trial will not prevent the consumption of time, effort, and money on the part of the defendant official in defending his actions on the merits .... The fear that inhibits is that of a long, involved lawsuit and a significant money judgment, not the fear of liability for a certain type of claim. 438 U.S. 478, 522-23 (1978) (Rehnquist, J., concurring in part and dissenting in part).
178. 457 U.S. 800, 814 n.22, 817 n.29 (1982) (citing work by Peter Schuck and Judge Gesell's concurrence in Halperin); see id. at 822 (Burger, C.J., dissenting) (noting disagreement only with Court's refusal to extend absolute immunity to defendant official).
179. Brief for Petitioner at 44-47, Harlow, 457 U.S. 800 (No. 80-945) (reflecting that petitioner did not raise issue of eliminating subjective prong of defense); The Supreme Court, 1981 Term-Federal Jurisdiction and Procedure, 96 Harv. L. Rev. 196, 226-36 (1982) (noting that issue of eliminating subjective test was not briefed or carefully explored at oral argument in Harlow).
180. Harlow, 457 U.S. at 819.
181. Id. at 818 (citing Procunier v. Navarette, 434 U.S. 555, 565 (1978), and Wood v. Strickland, 420 U.S. 308, 322 (1975)).
182. Id. at 814-16.
183. Id. at 818.
184. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 422 (1971) (Burger, C.J., dissenting) (proposing "entirely different remedy," namely, "an administrative or quasi-judicial remedy against the government itself to afford compensation and restitution" to victims of Fourth Amendment violations).
185. Stone v. Powell, 428 U.S. 465, 540-42 (1976) (White, J., dissenting) ("If the defendant in criminal cases may not recover for a mistaken but good-faith invasion of his privacy, it makes even less sense to exclude the evidence solely on his behalf.").
186. Id. at 538-40;
187. see also Brief for Petitioner at 29-30, Stone, 428 U.S. 465 (No. 74-1055) ("The officer's reasonable reliance upon another branch of the government is not misconduct. Indeed, to the extent that suppression discourages such reliance, the exclusionary rule has a negative impact upon law enforcement and civil liberties.").
188. 443 U.S. 31 (1979).
189. See Brief for Petitioner at 14-17, DeFillippo, 443 U.S. 31 (No. 77-1680) (emphasis omitted) (citing United States v. Kilgen, 445 F.2d 287, 289-90 (5th Cir. 1971)). The court in Kilgen suggested both that arrest based on probable cause under a then-valid statute did not violate the Fourth Amendment, and that such an arrest coupled with police officials' "good faith belief in the validity of the statute" did not warrant suppression. Kilgen, 445 F.2d at 289 (citing Pierson v. Ray, 386 U.S. 547 (1967)). It would be nine years before the Fifth Circuit would unequivocally adopt a good faith exception to the exclusionary rule, in United States v. Williams, 622 F.2d 830, 846-47 (5th Cir. 1980) (en banc) (per curiam).
190. Brief for Respondent at 30-31, DeFillippo, 443 U.S. 31 (No. 77-1680) (distinguishing Kilgen and arguing "[g]ood faith cannot be a substitute for Fourth Amendment rights").
191. DeFillippo, 443 U.S. at 39-40 (holding officer had probable cause for search following valid arrest).
192. Id. at 37-38 (citing Pierson and asserting that a "prudent officer ... should not have been required to anticipate that a court would later hold the ordinance unconstitutional," and that "[s]ociety would be ill-served if its police officers took it upon themselves to determine which laws are and which are not constitutionally entitled to enforcement").
193. The Court again passed on the issue in Michigan v. Summers. See Brief for Petitioner at 33-34, Michigan v. Summers, 452 U.S. 692 (1981) (No. 79-1794) (citing Williams, 622 F.2d at 846-47) (advocating inapplicability of exclusionary rule when officers act in good faith).
194. 462 U.S. 213 (1983).
195. Petitioner's Brief on Reargument at i, Gates, 462 U.S. 213 (No. 81-430) (citations omitted).
196. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982) (shielding officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known").
197. Brief for the United States as Amicus Curiae Supporting Reversal at 24-25, Gates, 462 U.S. 213 (No. 81-430).
198. Supplemental Brief for the United States as Amicus Curiae Supporting Reversal at 59 n.39, Gates, 462 U.S. 213 (No. 81-430) [hereinafter Supplemental Brief for United States, Gates];
199. see also Reply Brief for the United States as Amicus Curiae Supporting Reversal at 13, Gates, 462 U.S. 213 (No. 81-430) [hereinafter Reply Brief for United States, Gates] ("[T]he 'reasonable mistake' exception we propose turns on an objective assessment of the officer's conduct ... ."). Earlier that same Term, the United States also urged the applicability of Harlow to the question of whether an "inevitable discovery" exception to the exclusionary rule should be measured by objective or subjective standards.
200. See Brief for the United States as Amicus Curiae Supporting Reversal at 10-11, Nix v. Williams, 467 U.S. 431 (1984) (No. 82-1651) [hereinafter Brief for United States, Nix].
201. Transcript of Oral Reargument, Gates, 462 U.S. 213, available at http://www.oyez.org/cases/1980-1989/1982/1982_81_430/reargument (on file with the Columbia Law Review) (reporting counsel for State of Illinois as arguing that "imposition of the exclusionary rule in this case for purely technical reasons would deter police officers ... from doing their job");
202. Reply Brief for United States, Gates, supra note 164, at 1, 6 n.1, 8 n.3, 13 ("[A]pplication of the exclusionary rule ... near the often indistinct boundary between good police work and impropriety-is as likely to deter the police from performing their job as it is to encourage compliance with the Fourth Amendment."); Supplemental Brief for United States, Gates, supra note 164, at 52 & n.36.
203. Gates, 462 U.S. at 217, 218. Gates was instead decided on substantive Fourth Amendment grounds, announcing a "totality-of-the-circumstances" test for evaluating the adequacy of probable cause to support a warrant.
204. Id. at 230.
205. Id. at 266-67 (White, J., concurring).
206. Id. at 258;
207. Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (noting "social costs" of litigation against public officials, including "the expenses of litigation" and "the diversion of official energy from pressing public issues").
208. 468 U.S. 897 (1984).
209. Several commentators have noted, and criticized, Leon's sidestepping of the underlying Fourth Amendment question to decide the remedial issue. Given that Gates was decided after the Ninth Circuit heard Leon, and given Gates's loosening of the standard for assessing warrant sufficiency, there was almost certainly no Fourth Amendment violation to remedy in the case.
210. See, e.g., Dripps, Living with Leon, supra note 119, at 914-15 (arguing that, under Gates, warrant in Leon did not pose Fourth Amendment issue);
211. Silas Wasserstrom & William J. Mertens, The Exclusionary Rule on the Scaffold: But Was It a Fair Trial?, 22 Am. Crim. L. Rev. 85, 97 (1984) ("It is hard to imagine a case in which police reliance on a warrant that failed to meet the Gates standard could be 'objectively' reasonable, and it turns out that neither Leon nor Sheppard was such a case."). This only highlights the deliberateness with which the Court sought to adopt the good faith exception, only shortly after passing on the question in Gates.
212. Leon, 468 U.S. at 922; see also id. at 913 ("[O]ur evaluation of the costs and benefits of suppressing reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate leads to the conclusion that such evidence should be admissible in the prosecution's case in chief.").
213. Id. at 922 & n.23.
214. Brief for the United States at 79-80, Leon, 468 U.S. 897 (No. 82-1771).
215. Paul Gewirtz, Remedies and Resistance, 92 Yale L.J. 585, 666-68 (1983) (discussing extent to which judges are uniquely constrained by requirement of plausible fidelity to precedent).
216. The question of what criteria are legitimate in evaluating "fit" drives an active debate among legal theorists. For a tiny sampling of this broad literature, see, e.g., Larry Alexander, Bad Beginnings, 145 U. Pa. L. Rev. 57, 70 (1996) (arguing that legal decisions may be justified by moral reasoning or deductive relationship to "an authoritative rule that governs the case").
217. Ronald Dworkin, Hard Cases, 88 Harv. L. Rev. 1057, 1083-87 (1975) (arguing that judges must announce rules of decision that fit with majority of existing legal rules and institutions);
218. Cass R. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 783-86 (1993) (arguing "fit" is determined by reference to legal precedent).
219. Richard H. Fallon, "The Rule of Law" As a Concept in Constitutional Discourse, 97 Colum. L. Rev. 1, 18 (1997) (describing legal process school view that the rule of law norm requires "reasoned elaboration of the connection between recognized, pre-existing sources of legal authority and the determination of rights and responsibilities in particular cases").
220. For present purposes, it is sufficient to offer these as pragmatic, rather than deontological, principles. In other words, courts should abide by these norms to the extent they desire that their opinions are perceived as possessing authority and legitimacy. The question of whether lawmakers have a moral or ethical duty to maintain fidelity to any particular manner or technique of reasoning is a much larger question that need not be resolved here. See generally Scott Brewer, Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy, 109 Harv. L. Rev. 923 (1996) (offering comprehensive and systematic examination of legal reasoning by analogy, including exploration of varying theories of duty in regard to analogical reasoning).
221. See, e.g., Stone v. Powell, 428 U.S. 465, 486, 492 (1976) (rejecting notion of exclusionary rule as personal right of accused);
222. Richard H. Fallon, & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1788 (1991) (describing exclusionary rule as example of "structural" remedial concerns in its aim "not to redress individual wrongs but to furnish incentives for officials generally to respect constitutional norms");
223. Yale Kamisar, Gates, "Probable Cause," "Good Faith," and Beyond, 69 Iowa L. Rev. 551, 593-94 (1984) [hereinafter Kamisar, Gates] (discussing systemic aims of exclusionary remedy).
224. See, e.g., Pierson v. Ray, 386 U.S. 547, 555 (1967) (noting qualified immunity traditionally existed to protect individual officials from liability where they acted "in good faith and with probable cause").
225. In academic circles, little notice was paid to this aspect of Leon. Prior to the decision, however, commentators had negatively assessed the affinity among advocates of the good faith exception for arguments by analogy to qualified immunity.
226. Stanley Ingber, Defending the Citadel: The Dangerous Attack of "Reasonable Good Faith," 36 Vand. L. Rev. 1511, 1546-52 (1983) (refuting overdeterrence rationale advanced by Justice White in decisions prior to Leon);
227. Kamisar, Gates, supra note 177, at 590-94 (arguing there are many situations "when an individual officer's 'understandable' or 'reasonable' conduct should protect him from personal liability but still not permit the use of illegally seized evidence in a criminal prosecution").
228. LaFave, Bright Lines, supra note 53, at 343-46 (arguing that case where officer action was found to be reasonable represents "an especially compelling case for applying the exclusionary rule so as to encourage the taking of such additional steps as will enhance police understanding of these limits").
229. Supra notes 133-134 and accompanying text.
230. United States v. Leon, 468 U.S. 897, 920-21 (1984).
231. See infra Part II.C.3 (describing "hydraulic" properties of borrowing and convergence).
232. See, e.g., United States v. Peltier, 422 U.S. 531, 556-57 (1975) (Brennan, J., dissenting) (criticizing majority for reasoning from "specific deterrence" to limit the exclusionary rule where "general" deterrence was appropriate framework).
233. See, e.g., Owen v. City of Independence, 445 U.S. 622, 651 (1980) ("[Section] 1983 was intended not only to provide compensation to the victims of past abuses, but to serve as a deterrent against future constitutional deprivations, as well.").
234. Robertson v. Wegmann, 436 U.S. 584, 599 (1978) (Blackmun, J., dissenting) (asserting, with Justices Brennan and White, that "[s]ection 1983's critical concerns are compensation of the victims of unconstitutional action, and deterrence of like misconduct in the future").
235. See Carey v. Piphus, 435 U.S. 247, 256-57 (1978) ("To the extent that Congress intended that awards under § 1983 should deter the deprivation of constitutional rights, there is no evidence that it meant to establish a deterrent more formidable than that inherent in the award of compensatory damages.").
236. See, e.g., Stone v. Powell, 428 U.S. 465, 493 (1976) (expressing continued support for "implementation of the exclusionary rule at trial and its enforcement on direct appeal of state-court convictions").
237. Cf. Steiker, Counter-Revolution, supra note 132, at 2533 (positing existence of multiple audiences who receive differing messages from Court's criminal procedure case law).
238. Compare, e.g., Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 396 (1971) (authorizing federal remedy for Fourth Amendment violations because although "the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages ... 'it is ... well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue ... federal courts may use any available remedy to make good the wrong done'" (quoting Bell v. Hood, 327 U.S. 678, 684 (1946))), with id. at 397-98 (leaving open possibility that defendant agents would be immune from suit).
239. United States v. Leon, 468 U.S. 897, 924-25 (1984) (citing "cases addressing questions of good-faith immunity under 42 U.S.C. § 1983" to counter proposition that "application of a good-faith exception to searches conducted pursuant to warrants will preclude review of the constitutionality of the search or seizure, deny needed guidance from the courts, or freeze Fourth Amendment law in its present state").
240. See, e.g., United States v. Williams, 622 F.2d 830, 847 (5th Cir. 1980) (en banc) (precluding application of exclusionary rule because "the conduct in question ... was ... taken in a reasonable, good-faith belief that it was proper").
241. Respondent's Brief on Reargument at 11, Illinois v. Gates, 462 U.S. 213 (1983) (No. 81-430) ("Petitioner and its amici disagree as to whether subjective state-of-mind determinations, objective conditions, or both are appropriate standards for judicial application of the proposed 'exception' to the exclusionary rule.").
242. Supreme Court in Conference, supra note 98, at 489-90 (describing, in conference notes of Justice Brennan for Stone, 428 U.S. 465, views of Justices supporting modification of exclusionary rule as ranging from suppression only if "there is a blatant disregard of the rules," to adoption of "a good faith, objective standard," to adoption of "an objective test of reasonableness").
243. Leon, 468 U.S. at 919 n.20 ("Many objections to a good-faith exception assume that the exception will turn on the subjective good faith of individual officers.").
244. Potter Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development, and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum. L. Rev. 1365, 1400 (1983) ("Adopting a good faith exception ... would put a premium on ignorance and would reduce the incentive for police departments to train their officers to comply with the [F]ourth [A]mendment.").
245. See, e.g., Leon, 468 U.S. at 924 ("The good-faith exception for searches conducted pursuant to warrants is not intended to signal our unwillingness strictly to enforce the requirements of the Fourth Amendment, and we do not believe that it will have this effect."); Bivens, 403 U.S. at 412-16 (Burger, C.J., dissenting) (asserting limitations on exclusionary rule can coexist with adequate constitutional enforcement).
246. Laurin, Rights Translation, supra note 13, at 1022-23 (describing reasons why criminal procedure standards eschew inquiries into state of mind); supra note 49 (discussing various cases in which Court declined to scrutinize police officers' mental states).
247. Leon, 468 U.S. at 919 n.20 (quoting United States v. Peltier, 422 U.S. 531, 542 (1975)); Gates, 462 U.S. at 261 n.15 (White, J., concurring)).
248. Gates, 462 U.S. at 265 & n.18 (White, J., concurring).
249. See supra notes 104-121 and accompanying text (discussing Court's attempts to establish empirical basis for exclusionary rule).
250. The opinion asserted the existence of "substantial social costs," chiefly "that some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains." Leon, 468 U.S. at 907. But, in the next breath, the Court acknowledged that "[m]any ... researchers have concluded that the impact of the exclusionary rule" on felony arrest disposition "is insubstantial." Id. at 908 n.6. The Court resorted to salvaging its cost-benefit calculation from this complicated picture of the cost side by asserting that the "small percentages" employed by such studies mask a larger "absolute number" of felons who are freed and that, in any event, the deterrent value of the exclusionary rule was zero, notwithstanding its own citations to empirical evidence to the contrary. Id.
251. See supra notes 104-121 and accompanying text (describing line of cases, beginning with Calandra, in which Court adopted deterrence rationale).
252. See supra Part II.C.1 (discussing overdeterrence principle as animating qualified immunity jurisprudence).
253. Leon, 468 U.S. at 920 (quoting Stone v. Powell, 428 U.S. 465, 539-40 (1976) (White, J., dissenting)).
254. Davis v. Scherer, 468 U.S. 183, 196 (1984).
255. See supra note 153 and accompanying text (discussing overdeterrence rationale in qualified immunity doctrine). Peter Schuck offered the seminal theoretical analysis of the overdeterrence risk, in work cited by the Court on this score.See Schuck, supra note 140, at 285-86 (explicating overdeterrence hypothesis);
256. see also Scherer, 468 U.S. at 196 (citing Schuck); Harlow v. Fitzgerald, 457 U.S. 800, 814 n.22 (1982) (same).
257. See New York v. Harris, 495 U.S. 14, 24 (1990) (Marshall, J., dissenting) (citing Leon for proposition that "excluding evidence that is the product of [a good faith] violation may result in deterrence of legitimate law enforcement efforts," because "officers fear that if their judgment ... of their conduct turns out to be wrong, the consequences ... may be too costly to justify the possible law enforcement benefits").
258. See, e.g., Hudson v. Michigan, 547 U.S. 586, 595 (2006) (asserting that consequence of suppressing evidence derived from knock-and-announce violations "would be police officers' refraining from timely entry after knocking and announcing").
259. Arizona v. Evans, 514 U.S. 1, 15 (1995) ("'Excluding the evidence can in no way affect [the officer's] future conduct unless it is to make him less willing to do his duty.'" (quoting Leon, 468 U.S. at 920)).
260. Cf. Pa. Bd. of Parole & Prob. v. Scott, 524 U.S. 357, 368 (1998) (asserting, as justification for refusing to apply exclusionary rule in parole revocation proceedings, that rule was unnecessary to deter police from violating probationers' rights because police "will be deterred from violating Fourth Amendment rights by the application of the exclusionary rule to criminal trials" (emphasis added)).
261. Malley v. Briggs, 475 U.S. 335, 344 (1986) (citation omitted). Justices Powell and Rehnquist would have pushed even harder than the majority did on specific application of Leon as precedent in the suit, arguing that the Court should have decided without remand that the defendant officers were entitled to qualified immunity because, as in criminal suppression hearings after Leon, the decision of a magistrate as to probable cause supporting a warrant should be "accorded primary evidentiary weight." Id. at 350-54 (Powell, J., concurring in part and dissenting in part); see also Groh v. Ramirez, 540 U.S. 551, 564, 565 n.8 (2004) ("Although both Sheppard and Leon involved the ... 'good faith' exception to the Fourth Amendment's general exclusionary rule, we have explained that 'the same standard of objective reasonableness that we applied in the context of a suppression hearing in Leon defines the qualified immunity accorded an officer.'" (quoting Malley, 475 U.S. at 344)).
262. Illinois v. Krull, 480 U.S. 340, 349-50 (1987).
263. Id. at 366-68 (O'Connor, J., dissenting).
264. See Groh, 540 U.S. at 565 n.8 (Stevens, J., joined by Breyer, Ginsburg, O'Connor, & Souter, JJ., majority opinion) (equating qualified immunity and good faith standards); id. at 566 (Kennedy, J., joined by Rehnquist, C.J., dissenting) (same); id. at 578-79 (Thomas, J., joined by Rehnquist, C.J. & Scalia, J., dissenting) (same); see also United States v. Allen, 625 F.3d 830, 838 (5th Cir. 2010) (finding error in district court's ruling that qualified immunity and good faith exception inquiries were distinguishable on basis of civil-criminal distinction).
265. See Malley, 475 U.S. at 344 (noting "objective reasonableness" in exclusionary rule and qualified immunity context are "the same standard").
266. The only exception to this outcome would be the rare instance of municipal liability being imposed. See infra Part II.C.3.a (discussing municipal liability outcome).
267. Id.
268. United States v. Leon, 468 U.S. 897, 922 n.23 (1984).
269. See supra notes 152-155 and accompanying text (discussing Justice White's early push to equate good faith exception with good faith defense).
270. Malley, 475 U.S. at 344-45. Indeed, this principle of symmetry garnered even the support of Justices Brennan and Marshall, who had vociferously dissented in Leon. 468 U.S. at 928-30 (Brennan, J., dissenting). The initial borrowing having occurred, neither dissented from the move toward convergence.
271. See Malley, 475 U.S. at 343-45 ("In the case of the officer applying for a warrant, it is our judgment that the judicial process will on the whole benefit from a rule of qualified immunity rather than absolute immunity.").
272. See supra Parts II.A, C (exploring political and jurisprudential lead-up to Leon).
273. 436 U.S. 658, 690-91 (1978).
274. See Bd. of the Cnty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997) (requiring "a plaintiff seeking to impose liability ... to identify a municipal 'policy or custom' that caused the plaintiff's injury").
275. City of Canton v. Harris, 489 U.S. 378, 388 (1989).
276. Arizona v. Evans, 514 U.S. 1, 17 (1995) (O'Connor, J., concurring) (emphasis omitted).
277. Id. (emphasis added).
278. 489 U.S. at 396-97 (O'Connor, J., concurring) (emphasis added).
279. See Brown, 520 U.S. at 404 ("[A]n act performed pursuant to a 'custom' that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law.").
280. 547 U.S. 586, 604 (2006) (Kennedy, J., concurring) (emphasis added). Justice Breyer's dissent suggested that he embraced a similar standard, though found evidence to satisfy it in Hudson's case. See id. at 610 (Breyer, J., dissenting) (observing "cases reporting knock-and-announce violations are legion" and "seem sufficiently frequent and serious as to indicate 'a widespread pattern'" of violations (quoting id. at 604 (Kennedy, J., concurring))).
281. See Brown, 520 U.S. at 404-05 (discussing fault and causation requirements articulated by O'Connor in City of Canton); City of Canton, 489 U.S. at 393-97 (O'Connor, J., concurring) (articulating fault and causation requirements); City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (concluding "a plaintiff may be able to prove the existence of a widespread practice" amounting to "'custom or usage'" (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68 (1970))).
282. See Evans, 514 U.S. at 17 (O'Connor, J., concurring) (stating her description of relevance of systemic Fourth Amendment violations "is saying nothing new" and that pattern of reliability or unreliability by informant was relevant to reasonableness of probable cause determination (citing Illinois v. Gates, 462 U.S. 213 (1983))).
283. See, e.g., United States v. Peltier, 422 U.S. 531, 556 (1975) (Brennan, J., dissenting) ("[C]ontrary to the Court's assumption, the exclusionary rule does not depend in its deterrence rationale on the punishment of individual law enforcement officials.").
284. John M. Burkoff, Bad Faith Searches, 57 N.Y.U. L. Rev. 70, 121-22 (1982) (criticizing proponents of good faith exception for neglecting exclusionary rule's general, rather than specific, deterrent aims);
285. Kamisar, Gates, supra note 177, at 590 (criticizing analogies between exclusionary rule and civil liability as wrongly focused on individual officials rather than on "the wider audience of all law enforcement officials and society at large" (citation and internal quotation marks omitted)).
286. See supra Part I.B.2 (discussing role of systemic considerations in Court's pre-Herring jurisprudence).
287. Herring v. United States, 129 S. Ct. 695, 702 (2009).
288. Hudson v. Michigan, 547 U.S. 586, 594 (2006); see also Wilson v. Arkansas, 514 U.S. 927, 931-36 (1995) (holding common law requirement that police announce their presence at a home and give opportunity for consensual admittance is also required by Fourth Amendment).
289. Hudson, 547 U.S. at 591-93.
290. Albert W. Alschuler, The Exclusionary Rule and Causation: Hudson v. Michigan and Its Ancestors, 93 Iowa L. Rev. 1741, 1762 (2008) [hereinafter Alschuler, Hudson] (characterizing interest-based attenuation formulation as "new to Fourth Amendment jurisprudence");
291. George M. Dery, A False Mirror: Hudson v. Michigan's Distortion of the Exclusionary Rule in Knock-and-Announce Litigation, 76 UMKC L. Rev. 67, 89 (2007) (calling Hudson's "analysis of attenuation ... detach[ed] from previous legal reasoning").
292. James J. Tomkovicz, Hudson v. Michigan and the Future of Fourth Amendment Exclusion, 93 Iowa L. Rev. 1819, 1862-63 (2008) (stating Hudson's invocation of attenuation "would be unremarkable and without significance for the future of Fourth Amendment exclusion were it a conventional application of the accepted doctrine," but that "Justice Scalia's explanation and application of attenuation ... is both novel and potentially quite expansive").
293. See, e.g., United States v. Ceccolini, 435 U.S. 268, 279-80 (1978) (pointing to significant lapse of time and intervening free will of witness as reasons why Fourth Amendment violation was attenuated from witness statements defendant sought to suppress); Wong Sun v. United States, 371 U.S. 471, 491 (1963) (concluding voluntary action by defendant in making statement following constitutionally invalid arrest amounted to attenuation).
294. See Alschuler, Hudson, supra note 234, at 1764 (asserting "[f]or more than forty years ... [t]he Court has insisted that exclusion is always what the Hudson Court said it never can be-a windfall awarded to a defendant for the sake of protecting the rights of others").
295. Tomkovicz, supra note 235, at 1869-70 (asserting Hudson attenuation approach "is rooted in the long-rejected notion that the exclusionary rule is present-oriented, designed to provide reparation for the person injured by a search or seizure," contrary to "the understanding that has prevailed for nearly four decades").
296. See United States v. Calandra, 414 U.S. 338, 354 (1974) (rejecting notion of exclusionary rule as rights-based, non-instrumental remedy).
297. See Alschuler, Hudson, supra note 234, at 1762-64 (comparing Hudson approach with Restatement (Second) of Torts);
298. Eric A. Johnson, Causal Relevance in the Law of Search and Seizure, 88 B.U. L. Rev. 113, 134 (2008) ("In Hudson, then, the Court's analysis tracked perfectly the form of analysis that characterizes application of the risk rule.");
299. Robert E. Keeton, Legal Cause in the Law of Torts 10 (1963) (demanding, roughly, that an actor be held responsible only for harm that "is a result within the scope of the risks by reason of which the actor is found to be negligent").
300. Alschuler, however, questions the Court's fidelity to the proximate cause principles from which it appears to draw, and also the extent to which courts actually apply Keeton's risk rule in the manner purportedly deployed by the Hudson majority.
301. Alschuler, Hudson, supra note 229, at 1763-64 (arguing Hudson in fact suffered injuries to privacy that knock-and-announce rule seeks to protect and that Court's analysis of what remedy should flow was contrary to standard tort or exclusionary rule reasoning).
302. 435 U.S. 247, 263 (1978).
303. Id. at 258-59, 263.
304. 176 F.3d 138, 148 (2d Cir. 1999).
305. See Hector v. Watt, 235 F.3d 154, 157 (3d Cir. 2000) ("If Carey instructs that we should assess liability in terms of the risks that are constitutionally relevant, then damages for an unlawful search should not extend to post-indictment legal process, for the damages incurred in that process are too unrelated to the Fourth Amendment's privacy concerns.").
306. Elkins v. Dist. of Columbia, 610 F. Supp. 2d 52, 60-62 (D.D.C. 2009) (rejecting plaintiffs' request for damages "for injuries resulting from the seizure of evidence and subsequent" legal proceedings because "the constitutionally relevant harm that occurred here was the invasion of ... privacy due to the illegal seizure of their documents, not the discovery of incriminating evidence ... and subsequent ... proceeding").
307. John C. Jeffries, Damages for Constitutional Violations: The Relation of Risk to Injury in Constitutional Torts, 75 Va. L. Rev. 1461, 1464-66, 1474-75 (1989).
308. 538 U.S. 760, 780 n.2 (2003) (Scalia, J., concurring).
309. See Hudson v. Michigan, 547 U.S. 586, 593 (2006) (focusing on City of Canton in attenuation analysis);
310. New York v. Harris, 495 U.S. 14, 20 (1990) ("hold[ing] that the station house statement in this case was admissible because Harris was in legal custody ... and because the statement ... was not the fruit of the fact that the arrest was made in the house rather than someplace else" and stating that, "[t]o put the matter another way, suppressing the statement taken outside the house would not serve the purpose of the rule that made Harris' in-house arrest illegal").
311. See, e.g., Segura v. United States, 468 U.S. 796, 805 (1984) (observing that suppression of evidence is not granted where an "independent source" for evidence attenuates connection between its discovery and constitutional violation).
312. Nix v. Williams, 467 U.S. 431, 443 n.4 (1984) ("The purpose of the inevitable discovery rule is to block setting aside convictions that would have been obtained without police misconduct.").
313. See United States v. Leon, 468 U.S. 897, 910-11 (1984) (citing classic attenuation cases as exemplifying Court's rejection of "a per se or 'but for' rule that would render inadmissible any evidence that came to light through a chain of causation that began with an illegal arrest").
314. Indeed, the United States argued a similar point as amicus in Hudson. See Brief for the United States as Amicus Curiae Supporting Respondent at 12, Hudson, 547 U.S. 586 (No. 04-1360) (arguing "inevitable discovery, independent source, and the causation rules ... all reflect the principle that suppression is too high a price to pay for a particular violation when the causal link between the violation and the acquisition of evidence is weak, non-existent, or irrelevant to exclusionary-rule policies," and contending these rules support interest-based attenuation theory).
315. See generally Laurin, Remedial Rationing, supra note 17 (identifying trend of "remedial rationing" in Court's criminal procedure jurisprudence).
316. In spite of evidence suggesting that civil verdicts were rarely obtained for knock-and-announce violations, the Court was satisfied that "[a]s far as we know, civil liability is an effective deterrent here, as we have assumed it is in other contexts." Hudson, 547 U.S. at 596-98.
317. See, e.g., Transcript of Oral Argument at 27, 32-33, 42-44, Hudson, 547 U.S. 586 (No. 04-1360) (discussing availability of civil action for Fourth Amendment violation in case); Brief for Respondent at 34 n.66, 35, Hudson, 547 U.S. 586 (No. 04-1360) (asserting alternative remedies including constitutional tort suits were adequate to deter knock-and-announce violations).
318. See, e.g., Brief for the United States at 28-29, Herring v. United States, 129 S. Ct. 695 (2009) (No. 07-513) (arguing suppression of evidence was not warranted for Fourth Amendment violation caused by negligent warrant recordkeeping because civil suits adequately incentivized correct police behavior); Brief for Respondent at 39-40, Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357 (1998) (No. 97-581) (arguing exclusionary rule should be extended to state parole proceedings because "[t]here are no alternative remedies meaningfully available to deter parole agents from conducting unconstitutional searches").
319. Brief for United States, Nix, supra note 164, at 22 (arguing that in refusing to apply inevitable discovery doctrine state court "overlooked the existence of alternatives to the exclusionary rule that might deter law enforcement officers from taking improper advantage of the doctrine by bad faith constitutional violations").
320. see also Scott, 524 U.S. at 369 (relying on availability of alternative remedies as reason to reject exclusionary rule requirement for parole proceedings); INS v. Lopez-Mendoza, 468 U.S. 1032, 1045 (1984) (same); Nix v. Williams, 467 U.S. 431, 446 (1984) (proffering "the possibility [that] ... civil liability ... lessen[ed] the likelihood that the ultimate or inevitable discovery exception will promote police misconduct" as reason for extending "inevitable discovery" exception to exclusionary rule).
321. See supra notes 197-205 and accompanying text (discussing Court's adoption of overdeterrence principle).
322. See Dripps, Fourth Amendment and Roberts Court, supra note 15, at 215-19 (noting Hudson appeared concerned with risk of overdeterrence).
323. See United States v. Calandra, 414 U.S. 338, 354 (1974) (describing "function" of exclusionary rule as "deterring police misconduct").
324. The availability of Bivens actions for federal officials' violations of constitutional rights depends expressly upon whether other "effective" remedies exist. See, e.g., Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72-74 (2001) (rejecting Bivens claim and noting availability of alternative effective remedies). More generally, of course, equitable remedies lie within the discretion of courts and depend on the unavailability of alternate "adequate" remedies.
325. See, e.g., Ex parte Young, 209 U.S. 123, 163-65 (1908) (noting party's objection that, since adequate remedy at law exists, court of equity has no jurisdiction). Instances of judicial consideration of remedial coordination are, however, more commonly of this ad hoc variety, rather than in the nature of determining permanent, prospective remedial rules.
326. Cf. Herring, 129 S. Ct. at 709 (Ginsburg, J., dissenting) (observing "by restricting suppression to bookkeeping errors that are deliberate or reckless, the majority leaves Herring, and others like him, with no remedy," given that civil rights action would be likewise nonviable).
327. Arizona v. Evans, 514 U.S. 1, 22-23 (1995) (Stevens, J., dissenting) ("[T]he police officer who reasonably relies on the computer information would be immune from liability in a § 1983 action ... [and] respondeat superior is unavailable .... Thus, if courts are to have any power to discourage official error of this kind, it must be through application of the exclusionary rule." (citation omitted)).
328. See supra Part II.C.3.
329. The focus of analysis thus far has been on the Supreme Court, but of course borrowing and convergence may occur at any judicial level, and indeed these dynamics may well trickle up and down in the hierarchy of courts. See, e.g., infra Part III (discussing lower court borrowing after Herring); cf. Tebbe & Tsai, supra note 9, at 463-64 (discussing constitutional borrowing by nonjudicial actors).
330. See supra notes 174-176 and accompanying text (noting need to ground use of analogy and precedent in reasoning that "is by some measure a 'fit' with the matter before the Court").
331. See supra Part II.C.2. The qualifier "plausible" is important. I mean here to treat "fit" as a quality measured by reference to tactical feasibility of the borrowing, rather than logical absolutes characterizing its propriety.
332. See supra note 180 and accompanying text (discussing search and seizure doctrine).
333. See supra Part II.C.3 (reviewing dynamic of convergence in Court's qualified immunity and exclusionary rule jurisprudence following Leon).
334. Cf. Illinois v. Krull, 480 U.S. 340, 367-68 (1987) (O'Connor, J., dissenting) (criticizing majority's application of qualified immunity standard in criminal proceeding).
335. Cf. Tebbe & Tsai, supra note 9, at 462 ("Creating a shared repertoire of persuasive moves also opens up possibilities for strategic leveraging by advocates, who may seize opportunities to deploy a device or framework from one field of constitutional law in some other area.").
336. See, e.g., Krull, 480 U.S. at 355 (citing Harlow in support of proposition that law enforcement officers cannot "be said to have acted in good-faith reliance upon a statute if its provisions are such that a reasonable officer should have known that the statute was unconstitutional").
337. Brief for United States at 20 n.13, Ryder v. United States, 515 U.S. 177 (1995) (No. 94-431) (using Harlow to show "in a variety of contexts, the availability of a particular remedy for unlawful government conduct may depend upon whether the illegality of that conduct was clearly established at the time of its occurrence").
338. Brief for Petitioner at 14-15, Maryland v. Garrison, 480 U.S. 79 (1987) (No. 85-759) (citing Harlow as case that discusses "whether the asserted unconstitutional actions violated clearly established constitutional rights of which a reasonable person would have known").
339. See, e.g., Transcript of Oral Argument at 31, 53-54, Herring v. United States, 129 S. Ct. 695 (2009) (No. 07-513) (transcribing discussion of availability of civil remedies under circumstances of Herring's constitutional violation).
340. To the extent that borrowing is effectuated most simply by importation of particular legal terms of art from one field to another, a background dynamic is the role of computer-based legal research and the related importance of judicial law clerks and their legal research habits in shaping opinion craft.
341. Casey R. Fronk, The Cost of Judicial Citation: An Empirical Investigation of Citation Practices in the Federal Appellate Courts, 2010 U. Ill. J.L. Tech. & Pol'y 51, 60-65 (discussing increase in use of computer-assisted research in judicial opinions);
342. J. Daniel Mahoney, Law Clerks: For Better or for Worse?, 54 Brook. L. Rev. 321, 339-40 (1988) (discussing influence of law clerks on process of judicial opinion writing).
343. See supra note 9 and accompanying text (defining borrowing).
344. See supra notes 207-210 and accompanying text (discussing Malley and subsequent developments leading to convergence of qualified immunity test and good faith exception).
345. Hudson v. Michigan, 547 U.S. 586, 604 (2006) (Kennedy, J., concurring).
346. See supra Part I.B (discussing Herring culpability framework).
347. See Farmer v. Brennan, 511 U.S. 825, 836 n.4 (1994) (noting gross negligence and recklessness had been treated as functionally identical).
348. See supra note 43 (defining negligence as deviation from reasonable person's standard of care);
349. Alschuler, Herring, supra note 4, at 485 (arguing Herring culpability formulation could not be squared with purportedly objective "good faith" standard of Leon).
350. Malley v. Briggs, 475 U.S. 335, 341 (1986) (emphasis added).
351. 483 U.S. 635 (1987).
352. Id. at 639-40.
353. Id. at 640.
354. Id. at 641 ("The relevant question ... is the objective (albeit fact-specific) question whether a reasonable officer could have believed [the] warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed. [The officer]'s subjective beliefs about the search are irrelevant.").
355. see also Wilson v. Layne, 526 U.S. 603, 615 (1999) ("[T]he appropriate question is the objective inquiry whether a reasonable officer could have believed that bringing members of the media into a home during the execution of an arrest warrant was lawful, in light of clearly established law and the information the officers possessed." (emphasis added)).
356. See, e.g., Groh v. Ramirez, 540 U.S. 551, 564 & n.7 (2004) (examining guidelines of petitioner's department);
357. Wilson, 526 U.S. at 617 & n.4 (examining Marshal Service's ride-along policy).
358. See Anderson, 483 U.S. at 641 (noting fact-specific inquiry did "not reintroduce into qualified immunity analysis the inquiry into officials' subjective intent that Harlow sought to minimize").
359. See, e.g., Model Penal Code § 2.02(2)(c) (1985) (defining recklessness as constituting "conscious[] disregard[]" of "substantial" risk of harm); see also Groh, 540 U.S. at 565 (responding to officer's qualified immunity claim not by rejecting suggestion of heightened culpability requirement, but by asserting the case fit within Leon's prohibition on warrants so "facially deficient" no officer could presume them to be valid (quoting United States v. Leon, 468 U.S. 897, 923 (1983))). In this contention I part company with prominent scholars of constitutional remedies and the Fourth Amendment, who have characterized the state of mind required to rebut qualified immunity as bare negligence.
360. Alschuler, Herring, supra note 4, at 485 (characterizing Leon standard as "simply whether a reasonably well trained officer would have known that his search was unlawful");
361. John C. Jeffries, The Right-Remedy Gap in Constitutional Law, 109 Yale L.J. 87, 89 (1999) [hereinafter, Jeffries, Right-Remedy Gap] ("Generally speaking, the kind of fault required is negligence with respect to illegality.").
362. Laurin, Rights Translation, supra note 13, at 1022-23 (contrasting fault-based framework of constitutional tort doctrine with rejection of that framework in criminal procedure doctrine);
363. Jeffries, Right-Remedy Gap, supra note 283, at 92-95 (arguing fault-based analysis plays prominent role in constitutional torts, particularly in qualified immunity doctrine).
364. See supra Part I.B.1;
365. Alschuler L, Herring, supra note 4, at 487-88 (arguing that despite appearance of having established partly subjective standard, "the Court insisted that it had done no such thing .... It did not explain how a court could determine whether an officer had violated the Constitution deliberately without examining his intent").
366. LaFave, Smell of Herring, supra note 4, at 784 (suggesting Herring might use recklessness to mean "that version of gross negligence involving only objective fault, but with a greater departure from the reasonable man standard").
367. See, e.g., Model Penal Code § 2.02(2)(a), (c) (describing "purpose[ful]" criminal conduct as the "conscious object[ive]" of actor, and "reckless[]" criminal conduct as involving "conscious[] disregard[]"); Restatement (Second) of Torts § 500 (1965) (defining "reckless" disregard of the safety of another as involving action or "intentional[]" failure to act, or acting with knowledge or "reason to know" of risk).
368. Malley v. Briggs, 475 U.S. 335, 341 (1986) (emphasis added).
369. Anderson v. Creighton, 483 U.S 635, 640 (1987) (stating that legal standard at issue must be "particularized," and unlawfulness must be "apparent" under the circumstances faced by the defendant official).
370. Id. at 641 (emphasis added).
371. Id.
372. As a practical matter, of course, these are circumstances that will more often be proved through objective rather than subjective evidence-e.g., proof of available training, rather than an officer's admissions as to her legal understanding.
373. See Crawford-El v. Britton, 523 U.S. 574, 593 & n.14 (1998) ("[T]he subjective component of the immunity defense [was] eliminated by Harlow.").
374. See, e.g., Model Penal Code § 2.02(2)(a)-(b) (1985) (distinguishing "purposely" acting, requiring that harm be "conscious object" of actor, from "knowingly" acting, requiring "aware[ness]" of nature or circumstances of action);
375. see also Crawford-El, 523 U.S. at 592 (describing "motive" as irrelevant consideration for purposes of qualified immunity).
376. See, e.g., Hammond v. Kunard, 148 F.3d 692, 697 (7th Cir. 1998) ("Looking at what the officers knew at the time of the alleged constitutional deprivation does not constitute a 'subjective' test for qualified immunity. We are not looking at the motives for engaging in the questioned conduct, but rather at the information before the officer ... .").
377. Arizona v. Gant, 129 S. Ct. 1710, 1719, 1723-24 (2009); see New York v. Belton, 453 U.S. 454, 460 (1981) (holding "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile" (footnote omitted)).
378. Rules concerning retroactivity would appear to dictate that the new Gant principle will be substantively applicable in cases pending on direct appeal. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (holding "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final").
379. United States v. Johnson, 457 U.S. 537, 562 (1982) ("[A] decision of this Court construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered."). Arguably, however, the remedy question is separate. Cf. Illinois v. Gates, 462 U.S. 213, 223 (1983) ("The question whether the exclusionary rule's remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.").
380. Compare, e.g., United States v. Davis, 598 F.3d 1259, 1263-68 (11th Cir. 2010) (holding good faith exception precluded application of exclusionary rule to remedy Gant error), cert. granted, 131 S. Ct. 502 (2010), and United States v. McCane, 573 F.3d 1037, 1042-45 & n.5 (10th Cir. 2009) (same), with United States v. Gonzalez, 578 F.3d 1130, 1132-33 (9th Cir. 2009) (declining to apply good faith exception and requiring, pursuant to Gant, suppression of evidence from search), reh'g en banc denied, 598 F.3d 1095 (2010), and United States v. Peoples, 668 F. Supp. 2d 1042, 1051 (W.D. Mich. 2009) (same).
381. Davis v. United States, 131 S. Ct. 502 (2010) (granting certiorari).
382. See Gant, 129 S. Ct. at 1722 n.11.
383. See Anderson v. Creighton, 483 U.S. 635, 639-41 (1987) (explaining rights must be "clearly established" at high degree of particularity to abrogate qualified immunity (quoting Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982))).
384. See Herring v. United States, 129 S. Ct. 695, 702 (2009) (noting police misconduct must have been sufficiently deliberate so as to have been susceptible to deterrence in order to trigger exclusionary rule).
385. Gonzalez Cert Petition, supra note 14, at 14 (arguing that Gant observation concerning qualified immunity "directly supports the conclusion that the good faith exception to the exclusionary rule applies in criminal prosecutions because the qualified immunity test turns on the same standard of reasonableness as the good faith exception").
386. See supra Part I.B.3 (discussing Herring's attribution to Leon of proposition that culpability of Dale and Coffee County personnel must be separately parsed).
387. Herring, 129 S. Ct. at 700.
388. United States v. Herring, 492 F.3d 1212, 1217 (11th Cir. 2007), aff'd, 129 S. Ct. 695 (2009).
389. Whether the rationale underlying this view is deterrence (i.e., ensuring the remedy's salience by assessing it against only the actor whose conduct should be altered) or corrective justice (i.e., "punishing" the culpable official with the sanction of lost evidence) is an important question, which is nonetheless not material to the instant point.
390. United States v. Leon, 468 U.S. 897, 923 (1984).
391. Groh v. Ramirez, 540 U.S. 551, 558 (2004).
392. Compare United States v. Lazar, 604 F.3d 230, 237-38 (6th Cir. 2010) (answering question in affirmative), with United States v. Hamilton, 591 F.3d 1017, 1029 (8th Cir. 2010) (answering question in negative).
393. See supra Part I.B.2.
394. See supra Part II.C.3.a (discussing convergence of exclusionary rule doctrine and municipal liability for constitutional torts).
395. See Herring v. United States, 129 S. Ct. 695, 704 (2009) (citing Arizona v. Evans, 514 U.S. 1, 17 (1995) (O'Connor, J., concurring)); Hudson v. Michigan, 547 U.S. 586, 604 (2006) (Kennedy, J., concurring)); see also supra Part II.C.3.a (discussing interplay between municipal liability and exclusionary rule doctrines).
396. See Herring, 129 S. Ct. at 707, 709 (Ginsburg, J., dissenting) ("Civil liability will not lie for the 'vast majority' of [F]ourth [A]mendment violations-the frequent infringements motivated by commendable zeal, not condemnable malice." (alteration in original) (citation omitted)).
397. Brief for the United States at 28-29, Herring, 129 S. Ct. 695 (No. 07-513) (arguing that suppression of evidence was not warranted for Fourth Amendment violation caused by negligent warrant recordkeeping because civil suits adequately incentivized correct police behavior).
398. Reply Brief for the Petitioner at 21-27, Herring, 129 S. Ct. 695 (No. 07-513) (refuting government's contention that civil remedies adequately substitute for exclusionary rule); Transcript of Oral Argument, supra note 268, at 31, 36, 53-54 (transcribing discussion of availability of civil remedies under circumstances of Herring's constitutional violation).
399. See supra Part II.C.2 (assessing role of "fit" in supporting borrowing).
400. Other questions that might plausibly be answered by reference to municipal liability standards include what level of culpability must be proved as to any such error and how the causal link between systemic deficiencies and the constitutional violation should be assessed.
401. Herring, 129 S. Ct. at 703-04.
402. Id. at 708 (Ginsburg, J., dissenting) (noting Dale County lacked electronic connection to County Clerk's warrant database, maintained physical copies of warrants in manner rendering searches difficult, and lacked any "routine practice of checking the database for accuracy" (citations omitted)).
403. Id. at 702 (majority opinion) (emphasis added).
404. E.g., Bd. of the Cnty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 689 (1978).
405. Brown, 520 U.S. at 406-07 (internal quotation marks omitted) (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)); Farmer v. Brennan, 511 U.S. 825, 836, 840-41 (1994).
406. Brown, 520 U.S. at 403-04;
407. Farmer, 511 U.S. at 836, 840-41.
408. Compare, e.g., Pineda v. City of Houston, 291 F.3d 325, 329 (5th Cir. 2002) (holding that evidence of eleven incidents of warrantless entry did not establish a "pattern"), and Estate of Moreland v. Dieter, 395 F.3d 747, 759-60 (7th Cir. 2005) (affirming summary judgment for sheriff on qualified immunity grounds, despite evidence of multiple incidents of improperly pepper-spraying inmates, and allegations but no proof of inadequate policies or training), with Thomas v. Cook Cnty. Sheriff's Dep't, 604 F.3d 293, 303 (7th Cir. 2010) (upholding jury finding of "widespread custom or practice" based on proof of numerous inadequate policies, despite lack of evidence of prior constitutional violations).
409. See Brown, 520 U.S. at 415; City of Canton, 489 U.S at 399 (O'Connor, J., concurring) ("Allowing an inadequate training claim such as this one to go to the jury based upon a single incident would only invite jury nullification.").
410. City of Oklahoma City v. Tuttle, 471 U.S. 808, 821 (1985) (finding trial court's willingness to allow jury finding of pattern of inadequate training on the basis of one incident "unwarranted"). The scope of "pattern" evidence required to impose municipal liability and the question of when, if ever, a single constitutional violation will support municipal liability are being considered by the Court this Term in Thompson v. Connick, 578 F.3d 293 (5th Cir. 2009), cert. granted, 130 S. Ct. 1880 (2010).
411. City of Canton, 489 U.S. at 390-91.
412. Compare, e.g., United States v. Campbell, 603 F.3d 1218, 1235-36 (10th Cir. 2010) (denying suppression because violation was at most "a single instance" and there was no evidence of a "policy or practice"), with Moss v. Kopp, 559 F.3d 1155, 1169 (10th Cir. 2009) (stating, in context of § 1983 action, that "proof of a single incident of unconstitutional activity is ordinarily not sufficient to impose municipal liability" without evidence that incident occurred "pursuant to a decision made by a person with authority to make policy decisions on behalf of the entity being sued" (emphasis added)).
413. Cf. Transcript of Oral Argument, supra note 268, at 20 (recording comment of petitioner's counsel, making reference to the bumbling sheriff's deputy Fife employed by the tiny southern locale of Mayberry in the television classic The Andy Griffith Show, in response to rumination by the Chief Justice that Dale County personnel "probably don't have the latest version of WordPerfect, or whatever it is" and "are probably making do with whatever they can under their budget and doing the best they can").
414. City of Canton, 489 U.S. at 390, 392. Lower courts have followed suit. See, e.g., Grazier ex rel. White v. City of Philadelphia, 328 F.3d 120, 125 (3d Cir. 2003) ("The plaintiffs complain that the City provides insufficient 'field training' and fails to instruct its officers in 'shoot/no shoot' procedures. However, the evidence showed that the City does provide extensive on-the-job training, if not always in precisely the form that plaintiffs would prefer."); Pineda v. City of Houston, 291 F.3d 325, 332-33 (5th Cir. 2002) (rejecting claim that special Fourth Amendment training was required to deal with scenario under which constitutional violation occurred, where minimal general training was received); Palmquist v. Selvik, 111 F.3d 1332, 1345 (7th Cir. 1997) ("The estate's argument boils down to 'no special training = deficient training.' We cannot accept this equation.").
415. Cf. Transcript of Oral Argument, supra note 268, at 25-26 (recording petitioner's counsel's discussion of empirical data regarding error rates);
416. Brief for Petitioner at 36 n.13, 41 n.15, Herring v. United States, 129 S. Ct. 695 (2009) (No. 07-513) (citing empirical data on police department errors).
417. See, e.g., Carter v. District of Columbia, 795 F.2d 116, 124 (D.C. Cir. 1986) (rejecting statistical evidence of department policy as "too general");
418. Yanez v. City of New York, 29 F. Supp. 2d 100, 111-12 (E.D.N.Y. 1998) (rejecting relevance of report on NYPD-wide corruption to municipal liability claim where link to misconduct of individual officers was too "tenuous").
419. See supra notes 64-65 (providing examples of exclusionary rule cases that have entertained empirical evidence of systemic deficiencies).
420. Pamela S. Karlan, The Paradoxical Structure of Constitutional Litigation, 75 Fordham L. Rev. 1913, 1920-21 (2007) (discussing challenges facing plaintiffs pursuing § 1983 municipal liability claims);
421. David Rudovsky, Running in Place: The Paradox of Expanding Rights and Restricted Remedies, 2005 U. Ill. L. Rev. 1199, 1234 (discussing demanding factual burden in municipal liability claims).
422. See Herring, 129 S. Ct. at 710 (Ginsburg, J., dissenting) (doubting that poor defendants lacking discovery mechanisms will generally be able to adduce evidence of police practices to show reckless conduct).
423. See supra Part I.B.2.
424. Fourth Amendment scholars running the gamut of dispositions toward the exclusionary rule had long urged greater attention to systemic considerations in conceiving of the exclusionary remedy.
425. Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 367-72, 416-31 (1974) (asserting that exclusionary rule should reflect view of Fourth Amendment as "a regulation of governmental conduct" rather than "a collection of protections of ... spheres of interest of individual citizens");
426. John Kaplan, The Limits of the Exclusionary Rule, 26 Stan. L. Rev. 1027, 1050-53 (1974) (urging greater attention to impact of exclusionary rule on organizational behavior).
427. Indeed, even before Leon, Yale Kamisar specifically and presciently endorsed an analogy between the exclusionary rule and municipal constitutional tort liability.
428. Kamisar, Gates, supra note 177, at 594-96 (arguing that "the law governing tort actions against a governmental entity itself provides a better analogy" for exclusionary rule doctrine than law governing individual tort liability).
429. Police chiefs and their immediate deputies-those who make departmental policy-are likely to be directly accountable to a mayor or city council officials-actors whose political fortunes rise and fall with criminal convictions. It is also more likely that prosecutors would communicate trends in suppression statistics to police management than that individual officers would be abreast of outcomes in individual cases.
430. Bivens actions are only maintained against individual officers, and direct claims under the Federal Tort Claims Act are premised on vicarious liability. Therefore, systemic misconduct will rarely, if ever, have occasion to be explored in civil suits concerning federal action.
431. Nancy Leong, Making Rights 2 (Dec. 4, 2010) (unpublished manuscript) (on file with the Columbia Law Review) (offering evidence that Fourth Amendment claims "are litigated unevenly in the criminal and civil contexts, sometimes extremely so," suggesting "that adjudication of a right in the criminal context tends to result in more victories by the party that supports narrower articulation of that right-that is, the government").
432. Herring v. United States, 129 S. Ct. 695, 707 (2009) (Ginsburg, J., dissenting) (quoting Arizona v. Evans, 514 U.S. 1, 18 (1995) (Stevens, J., dissenting)).
433. Mitchell N. Berman, Constitutional Decision Rules, 90 Va. L. Rev. 1, 12 (2004). Henry Monaghan made a closely related observation, generally and with respect to the exclusionary rule, in his seminal Harvard Law Review Foreword. Monaghan, supra note 94, at 3-10, 26-27.
434. Laurin, Rights Translation, supra note 13, at 1060-61 (proposing framework for "rights translation" to develop contours of rights and corresponding decision in multiple remedial contexts).
435. See Tebbe & Tsai, supra note 9, at 484-85 (discussing virtue of generalized legal norms borrowing advances).
436. Id.
437. To counsel hesitation does not, of course, equate with general condemnation. For example, the novel "attenuation" approach advanced in Hudson v. Michigan is on its face consistent with the broad principles of constructing remedial rules that I have proposed. See supra Part II.C.3.b (discussing Hudson's "attenuation" analysis).
438. Note, of course, that the same criticism could be lodged against qualified immunity itself. The complex relationship, however, between qualified immunity and constitutional doctrine is beyond the scope of this Essay.
439. Fallon & Meltzer, supra note 177, at 1736; see also supra Part II.C.3.c (examining alternate remedies).
440. Richard H. Fallon, The Supreme Court, 1996 Term-Foreword: Implementing the Constitution, 111 Harv. L. Rev. 54, 56-57 (1997) (describing process by which Court crafts doctrine to implement, and not simply divine meaning of, Constitution).
441. See, e.g., Hansmann & Kraakman, supra note 11, at 468.
442. See, e.g., Beldiman, supra note 11, at 537-40;
443. Mark A. Lemley, The Modern Lanham Act and the Death of Common Sense, 108 Yale L.J. 1687, 1697-1710 (1999) (decrying "doctrinal creep in trademark law").
444. See Jackson, supra note 11, at 116-20, 125-27 ("Engagement with transnational legal sources may helpfully interrogate understanding of our own Constitution in several ways.");
445. David S. Law, Generic Constitutional Law, 89 Minn. L. Rev. 652, 727-42 (2005) (defending citations to foreign case law in American constitutional jurisprudence).
446. A notable exception in this regard has been in the field of state constitutional law, where a group of scholars has assessed the practice of extensive borrowing from federal constitutional law as hampering legal definition, evolution, and innovation.
447. James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev. 761, 766 (1992) (discussing link between borrowing and "the poverty of state constitutional discourse" of state constitutionalism).
448. See Tebbe & Tsai, supra note 9, at 462, 464 (defending doctrinal borrowing).
449. Id.
450. See supra note 165 and accompanying text.
451. One example is the Christian Right's success in developing a litigation strategy that frames First Amendment claims not within the rubric of religion but rather of speech.
452. Mark Tushnet, What Consequences Do Ideas Have?, 87 Tex. L. Rev. 447, 448 n.8 (2008) (collecting sources describing and debating this strategy).
453. In this respect the exclusionary rule context offers a counterpoint to Tebbe and Tsai's general view that borrowing had a tendency to advance values of transparency and participation in the law.
454. Tebbe & Tsai, supra note 9, at 462, 464.