Skip to main content
Unpublished Paper
Herring v. United States: Mapp's Artless Overruling?
ExpressO (2009)
  • Michael Vitiello
Abstract: Well before the 2008 term ends, I can safely predict that Herring v. United States will be one of the most important cases decided during this term. While arguably a narrow decision, few readers can miss its sweeping logic, effectively eroding the general application of the Fourth Amendment’s exclusionary rule. Herring may signal the demise of Mapp v. Ohio, the landmark decision requiring states to apply the exclusionary rule as a remedy for Fourth Amendment violations. Given a long line of decisions eroding Mapp, should the current Court’s critics really be surprised at Mapp’s impending demise? I think that the answer is an unequivocal yes and that the Herring majority’s approach is more evidence of how disdainful some members of the Court are about following precedent and observing recognized conventions established by the Court. This essay explores a thesis advanced by Professor Jerold Israel over 40 years ago, that there is an art to overruling precedent. Relying on identifiable criteria (for example, identifying that an earlier cases has been eroded by subsequent case law), is important for those who believe in the rule of law and stability in the law. After developing that thesis, I explore how the Court might have made an incremental change to the law in Herring without doing violence to precedent. I then explore the dramatic and unwarranted language in Herring and explore its implications for the future of the exclusionary rule.
  • Exclusionary rule
Publication Date
March 10, 2009
Citation Information
Michael Vitiello. "Herring v. United States: Mapp's Artless Overruling?" ExpressO (2009)
Available at: