As al-Kidd suggests, even when the Court has looked to the substantive law at issue in post-9/11 terrorism cases, it has treaded lightly. In Hamdi, for example, both of the Court's holdings were exceedingly narrow, with the plurality carefully circumscribing its holding that the Authorization for Use of Military Force (AUMF) authorized Hamdi's detention, and stressing that, although "some evidence" was an insufficient evidentiary burden to impose upon the government, the actual mechanics of resolving Hamdi's claims could—and should—be worked out by the lower courts.

Reduced to its simplest, the crux of Justice Jackson's enigmatic dissent in Korematsu was that the federal courts-and the Supreme Court in particular-should avoid deciding wartime cases turning on claims of exigency. In Justice Jackson's view, such disputes presented the judiciary with two equally unappealing alternatives: either uphold the government's conduct, and thereby risk the consequences of lending legal imprimatur to an effectively unreviewable claim of military necessity (which is what ended up happening in Korematsu itself), or invalidate the contested act, and risk being ignored by the executive-perhaps at substantial expense to the Court's power and legitimacy going forward. Given these options, Justice Jackson seems to have concluded that the only winning move was not to play.

Response to: Jennifer E. Laurin, Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence, 111 Colum. L. Rev. 670 (2011).

Though she provides ample analysis for most of her many insights in Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence, Professor Laurin never actually explains her article's title. Curious readers may well wonder exactly what it means to "trawl" for Herring. Is this just a simple pun on hapless Bennie Dean Herring's name, or is there more to it? At the risk of ruining a good joke, I suggest that "trawling" is in fact a conceptually significant metaphor that helpfully illuminates the "lessons in doctrinal borrowing and convergence" heralded in Laurin's subtitle. Indeed, the trawling metaphor builds upon a second water-based metaphor-the "hydraulics" of borrowing and convergence-that together animate Laurin's bold theses about the true origins and future trajectory of contemporary exclusionary rule doctrine.

Response to:  Eve Brensike Primus, Disentangling Administrative Searches, 111 Colum. L. Rev. 254 (2011).

Scholars have long used the term "administrative search cases" to refer to judicial decisions dealing with searches carried out by officials other than the police and designed to implement prohibitions that are as much regulatory as criminal.  These searches include health and safety inspections, roadblocks, drug testing, and searches of school children and public employees for evidence of rule violations.  In her article Disentangling Administrative Searches, Professor Eve Brensike Primus makes three distinct claims about the Supreme Court's decisions on this subject. 

Her first and most important argument is that, contrary to the usual view, these cases are not all linked jurisprudentially but rather encompass two distinct lines of decisions.  The first line of cases is focused on "dragnets" that involve area or group searches aimed at addressing a specific problem (health and safety inspections, roadblocks, group drug testing).  The second deals with searches of people belonging to "special subpopulations" associated with a lesser expectation of privacy (students, employees, probationers).