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).

Reply to:  Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011).

November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a constitutional right to same-sex marriage. Supporters of the campaign rallied around the mantra, “It’s we the people, not we the courts.” Voter turnout surged to unprecedented levels; the national media riveted attention on the event. No sitting Iowa justice had ever lost a retention election before. This essay explains why the Iowa elections corroborate, yet also complicate, the thesis that judicial elections offer important outlets for popular constitutionalism. While the retention vote sparked (and vindicated) an exceptional episode of constitutional mobilization, the role played by out-of-state interests highlights a number of difficult questions regarding popular constitutionalism’s relationship to federalism and popular sovereignty. The essay concludes with a note on the prospects for judicial election reform.

Response to:  Shyamkrishna Balganesh, “Hot News”:  The Enduring Myth of Property in News, 111 Colum. L. Rev. 419 (2011).

In his thorough and elegant article, Professor Shyamkrishna Balganesh joins the many prominent writers who have cast a hard look on Justice Mahlon Pitney’s opinion in the much mooted case of International News Service v. Associated Press. Overall, Balganesh is sympathetic to Justice Pitney’s position, which denies full property protection to what Balganesh calls “hot news”—quite literally news that was hot off the press, in a day when we had presses—while at the same time shielding the creators of that news from direct competition by rival providers.  On balance, I think that Balganesh reaches the right result in his defense of International News.  But we differ sharply in how best to achieve that result.  More concretely, Balganesh takes it as his core mission to explode an “enduring myth” that this decision enshrined an era of “property” in news, which is good against the entire world, as most property rights are.  My view is that there is no enduring myth to dispel.

Response to:  Adrienne Davis, Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality, 110 Colum. L. Rev. 1955 (2010).

In her Article Regulating Polygamy:  Intimacy, Default Rules, and Bargaining for Equality, Professor Adrienne Davis argues that the frequently invoked analogy between same-sex marriage and polygamy has been a red herring in the debate about polygamy, distracting collective attention away from polygamy's multiplicity, its "truly distinctive, and legally meaningful" feature.  This analogy, Davis observes, has been made by polygamy's strongest proponents as well as its strongest opponents.  As a result of its ability to distract, Davis argues that the gay marriage analogy has caused scholars to neglect what Davis considers the more pressing questions about polygamy, namely "whether and how polygamy might be effectively recognized and regulated, i.e., licensed."  She answers these questions by proposing a regulatory model based on commercial partnership law for polygamous marriages.  I should disclose upfront that this Response does exactly what Davis warns against-namely, chasing the red herring that is the analogy between same-sex marriage and polygamy.  It uses Davis's examination of the same-sex marriage analogy to polygamy in order to examine why a better analogy-namely, that between sodomy and polygamy-has not been quite as frequently invoked.

Following the release in 1980 of a groundbreaking study, Washington State officials asked themselves a hard question:  Why did the state lead the nation in the disproportionate incarceration of African Americans?  In response, the state's legislature and supreme court commissioned their own studies on the impact of race in Washington's criminal justice system.  The answers were inconclusive, but the disparities were—and still are—glaring, and for the past three decades, citizens in Washington have attempted to determine what factors drive the state's stark racial disparities in its criminal justice system.  Indeed, just this year, the Washington State Task Force on Race and the Criminal Justice System released a preliminary report on race and Washington's criminal justice system, which again grappled with this issue, finding that racial disparities "affect outcomes in the criminal justice system and matter in ways that are not fair, that do not advance legitimate public safety objectives, and that undermine public confidence in our criminal justice system."  A case initiated by a handful of Washington's minority inmates, Farrakhan v. Locke, offered perhaps the best opportunity to definitively answer the important questions raised by these studies.