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Supreme Court to Hear Oral Argument in Alvarez v. Smith - A Key Property Rights Case:

This fall, the Supreme Court will hear oral arguments in Alvarez v. Smith, an important property rights case that I blogged about in February. For reasons, I discussed in that post, the Supreme Court must rule for the property owners in Alvarez if it is to preserve even minimal protection for the property rights of crime suspects under the Due Process Clause of the Fourteenth Amendment.

Radley Balko, a prominent writer on criminal justice issues, has an excellent column discussing the case:

This fall, the U.S. Supreme Court will hear oral arguments in Alvarez v. Smith, a challenge to the state of Illinois' Drug Asset Forfeiture Procedure Act (DAFPA)... The six petitioners in Alvarez each had property seized by police who suspected the property had been involved in a drug crime. Three had their cars seized, three had cash taken. None of the six were served with a warrant, none of the six were charged with the crime....

Under DAFPA, incredibly, the government can delay for up to 187 days before an aggrieved property owner can get even a preliminary hearing on warrantless seizures of less than $20,000. The three car owners, for example, had to go without their cars for more than a year....

Under the 14th Amendment's Due Process clause, a state may not "deprive any person of life, liberty, or property, without due process of law." If Illinois' forfeiture law isn't a violation of the property portion of the Due Process clause, it's hard to fathom what would be.

In an opinion written by Judge Richard Posner, the Seventh Circuit struck down the Illinois law, ruling that the property owners were entitled to at least a minimal hearing before the government could take their cars and hold them for months at a time. This is the bare minimum of protection required by the Due Process Clause. As Radley explains, such asset forfeitures are an increasingly common part of the War on Drugs, and often allow authorities to hold the property of people who haven't been convicted of any crime. In this case, the six car owners in question weren't even charged with any offenses. Needless to say, most of the people victimized by such asset forfeitures tend to be poor and politically weak, and thus unlikely to have the political clout necessary to force state legislatures to reform their policies.

Unfortunately, it seems likely that the Supreme Court could reverse the Seventh Circuit and uphold the Illinois law. As a general rule, the Court usually hears cases only when there is a split between the courts of appeals (which is not true here), or when it wants to reverse the lower court decision. If the Court denies property owners even minimal protection under the Due Process Clause, it would further reinforce the second-class status of constitutional property rights in current jurisprudence, as well as impose needless hardships on numerous property owners.

However, there is a small ray of hope: This is one of the rare issues where newly confirmed Justice Sonia Sotomayor is a strong supporter of property rights. In Krimstock v. Kelly, a 2002 opinion she authored while a Second Circuit judge, Sotomayor struck down a New York City law very similar to the Illinois statute challenged in Alvarez. I discussed Krimstock in more detail in this June post, and in my Senate Judiciary Committee testimony on Sotomayor's record on property rights. Judge Posner's Seventh Circuit opinion in Alvarez actually cites Krimstock as a precedent supporting his decision. Hopefully, Justice Sotomayor will stick to her guns and provide a much-needed vote for property rights in this case.

Andrew J. Lazarus (mail):
Do you suppose Justice Sotomayor's view is somehow related to her experience living in poverty or her empathy with the poor, politically weak victims of seizure? Naaah. Couldn't be. We know those are the traits of a bad judge. </snark>
9.9.2009 4:16pm
Mike& (mail):
I vaguely remember a property rights case involving seizures of cars in Michigan (using cars to pick up hookers?) that got some conservative votes. Could be false memory. Anyone help me out?
9.9.2009 4:19pm
tvk:
I have to ask. If your last best hope for property rights is the person who you testified against precisely on the basis that their view of property rights protection is even worse than the worst Supreme Court case you could identify, isn't it kind of troubling? This is both a matter of tea-leaf reading, and a matter of strategy. If one day you are going to hope to persuade her to give greater protection to property rights, and her confirmation was almost a foregone conclusion, might it not have been better to have not testified against her on the basis that she fails to defend property rights?
9.9.2009 4:20pm
Mike& (mail):
OK. The case was Bennis v. Michigan.

Not exactly on point, but does evidence some sentiment about cars and civil forfeiture.

Interesting line-up:
Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Thomas, and Ginsburg, JJ., joined. Thomas, J., and Ginsburg, J., filed concurring opinions. Stevens, J., filed a dissenting opinion, in which Souter and Breyer, JJ., joined. Kennedy, J., filed a dissenting opinion
9.9.2009 4:22pm
Ilya Somin:
If your last best hope for property rights is the person who you testified against precisely on the basis that their view of property rights protection is even worse than the worst Supreme Court case you could identify, isn't it kind of troubling? This is both a matter of tea-leaf reading, and a matter of strategy. If one day you are going to hope to persuade her to give greater protection to property rights, and her confirmation was almost a foregone conclusion, might it not have been better to have not testified against her on the basis that she fails to defend property rights?

Sotomayor is not my "last best hope" on any property rights issue other than this one, where she is already on record taking a position (for which I gave her credit in the testimony and in blog posts). If she changes her position merely to get back at me, she would be a far worse justice than I would have expected, and my testifying against her would be even more justified than I thought.
9.9.2009 4:26pm
Ilya Somin:
Do you suppose Justice Sotomayor's view is somehow related to her experience living in poverty or her empathy with the poor, politically weak victims of seizure? Naaah. Couldn't be. We know those are the traits of a bad judge.

I have no idea whether empathy influenced her decision. All I know is that empathy was unnecessary to reach the right conclusion in this case, since it could readily be based on the text of the Fourteenth Amendment and simple common sense. If empathy is allowed to influence the outcome, it could just as readily cut the other way, since many judges empathize with prosecutors (as Sotomayor, herself a former prosecutor, possibly does).
9.9.2009 4:28pm
Displaced Midwesterner:
Minor correction. Looks like Evans wrote the 7th Cir opinion, Posner was just on the panel.
9.9.2009 4:37pm
Andy Rozell (mail):
I would disagree that the it's mostly the poor and disenfranchised who get caught up in these cases, though of course it frequently is. In my practice representing banks and other creditors I've gotten involved in quite a few of them when a car (or house) that is collateral for a loan gets seized. Of course, those clients have money to hire a lawyer and because they're repeat players, they know what to do.
9.9.2009 4:42pm
NickM (mail) (www):
I think the Court took this case up to set guidelines about how soon a hearing must be provided, and that they will affirm the 7th Circuit.
I'm guessing that the time within which a hearing must be provided will be based on speedy trial rules.

Nick
9.9.2009 5:12pm
David Welker (www):
First,

I want to say that I agree with Ilya Somin about how this case could turn out.

Second, and more importantly:

I want to call bullshit on the idea the empathy plays no role in determining the outcome of this case and the idea the Somin is not making appeals to empathy.

The following facts would be entirely irrelevant, except for appeals to empathy:


Under DAFPA, incredibly, the government can delay for up to 187 days before an aggrieved property owner can get even a preliminary hearing on warrantless seizures of less than $20,000.


I wouldn't want to go without my car for 187 days before I even go a hearing, would you? Of course, I am highly unlikely to ever get caught up in this sort of situation, therefore, it involves empathy for me to say that this is unreasonable.


Needless to say, most of the people victimized by such asset forfeitures tend to be poor and politically weak, and thus unlikely to have the political clout necessary to force state legislatures to reform their policies.


The fact that people are poor and politically weak has no relevance, except from an empathy perspective. Who cares. A lot of times, people the poor and politically weak have to put up with much more serious encumbrances (i.e. inadequate education in dysfunctional schools). That does not mean that we turn the political process upside down.

Just to clarify, I am completely in favor of policies that would help the poor and politically weak. Most of which, I am quite proud to say, Ilya Somin would oppose.

Anyway, Somin, I don't like your unnuanced anti-empathy religion. Obviously, empathy could be misused. So could pretty much anything else. But, if you are going to be all religious about it instead of being nuanced about it, at least be consistent.

I don't want to ever hear your ridiculous appeals about the poor and politically weak in the property rights context or any other context where such powerlessness and politically weakness is not strictly relevant from a doctrinal standpoint unless you drop your ridiculous anti-empathy religion or at the very least attempt to justify yourself from a doctrinal perspective.

By the way, I am glad you testified against Sotomayor. It illustrates an important point. Putting your ego aside, no one really cares what you think. Except your choir of friendly Republicans. And even then, your testimony probably did not even influence anyone's vote. Those who voted against Sotomayor would have voted against anyway, with or without the little charade that was your testimony. Other than that, your opinions on Sotomayor don't matter. Elections do.

I would suggest the following. If you want your opinions to matter outside the choir:

(1) Quit adopting ridiculous and extreme viewpoints. Your views on empathy being one of them. You know, in the field of law, as you may or may not realize by now, but should realize, there is nothing wrong with nuance. Empathy has the potential to be misused, but it also has other much more positive potentials.

(2) If you insist on adopting a nonsensical "principles" don't blatantly contradict those "principles." If empathy doesn't matter, the neither do your concerns about certain people being poor and politically weak. You have made no argument that these things are strictly doctrinally relevant.

(3) Stop being part of a mindless chorus. I accept that you aren't quite as lame as Ann Coulter, Glenn Beck, and Rush Limbaugh. But, it kind of is funny that you suddenly start discussing "empathy" and "czars" at precisely the same time these topics become the latest ridiculous Republican slogans circulating relentlessly in the media. Although, I am pleasantly surprised to see you disassociate yourself from these ridiculous people, the fact that I am surprised shows that you are doing a very poor job at communicating whatever moderation and reasonableness and thoughtfulness you possess. Most of the time, like some other "conspirators" and unlike others, I find you predictable. You rarely surprise me -- my basic view of you, which remains unchanged -- is that you are a rather doctrinaire libertarian of sorts who merely echoes slightly innovative but nonetheless unpersuasive justifications for your preexisting beliefs. In fact, what your selective invocation of poverty suggests to me, is that your views are constructed around what you already believe. For example, your "anti-empathy" views did not arise from anywhere but some sort of calculation that "empathy" is likely to lead to non-libertarian results more often than not. But then you conveniently forgot this anti-empathy "principle" in order to make what is basically an appeal to emotion in mentioning the supposed poverty and political powerlessness of those subject to forfeiture. The reason for this is because the real "principle" is not your anti-empathy stance, but whatever advances your libertarian philosophy.

Basically, you believe that if judges act more like robots and less like humans, that this will advance your libertarian philosophy. But, since you know that you yourself have to make appeals to humans and not robots to advance libertarianism, you make all of these doctrinally irrelevant point about how those subject to forfeiture, eminent domain, or whatever property rights fetish you are advancing at the moment. The contradiction is blatant.
9.9.2009 5:35pm
einhverfr (mail) (www):
I am less optimistic about Sotomayor's influence on this case. When you look at the confirmation hearings, the Ricci case, the Didden case, etc. and even the oral arguments today, Sotomayor seems EXTREMELY concerned about the possibility of judicial overreach, and hence tends to give undue deference to elected branches (oddly that is my main criticism of Justice Thomas as well).
9.9.2009 5:40pm
ys:

David Welker:
First,

I want to say that I agree with Ilya Somin about how this case could turn out.

Second, and more importantly:

I want to call bullshit on the idea the empathy plays no role in determining the outcome of this case and the idea the Somin is not making appeals to empathy.
...
By the way, I am glad you testified against Sotomayor. It illustrates an important point. Putting your ego aside, no one really cares what you think.
...
Quit adopting ridiculous and extreme viewpoints.
...

Please, calm down, sir. It's not healthy to get so agitated over such an inconsequential person as Prof.Somin. Try some yoga positions.
9.9.2009 5:57pm
Mike& (mail):
I wouldn't want to go without my car for 187 days before I even go a hearing, would you?

Who cares? I have another. I could also borrow a car from a friend. I don't roll with fools who only have one car. Being monoautomobile is worse than being monolingual.

Lick my boots, poor people...When you're done: Hail my driver, boy, and I might have Benson toss you a roll of quarters for the soda machine!
9.9.2009 6:09pm
Ilya Somin:
The following facts would be entirely irrelevant, except for appeals to empathy:


Under DAFPA, incredibly, the government can delay for up to 187 days before an aggrieved property owner can get even a preliminary hearing on warrantless seizures of less than $20,000.


Not true. They are relevant to the question of how much process is due under the 14th Amendment before the owner can be deprived of property for this long. Even if one feels zero empathy for the person in question, one can still see that they suffer a relatively great deprivation of property rights for which more due process is required than for a minor deprivation.

The fact that people are poor and politically weak has no relevance, except from an empathy perspective. Who cares. A lot of times, people the poor and politically weak have to put up with much more serious encumbrances (i.e. inadequate education in dysfunctional schools). That does not mean that we turn the political process upside down.

Wrong again. It is relevant to the question of whether their constitutional rights are likely to be protected without judicial intervention.

If you insist on adopting a nonsensical "principles" don't blatantly contradict those "principles." If empathy doesn't matter, the neither do your concerns about certain people being poor and politically weak. You have made no argument that these things are strictly doctrinally relevant.

Nowhere have I argued that any case should be decided one way or another based on empathy. One can be concerned about the constitutional rights of the poor and politically weak for reasons completely unrelated to empathy. Indeed, one of the main reasons to have an impartial rule of law is so that people's rights will NOT depend on whether or not the judges or anyone else happens to empathize with them.
9.9.2009 6:10pm
Ilya Somin:
Basically, you believe that if judges act more like robots and less like humans, that this will advance your libertarian philosophy. But, since you know that you yourself have to make appeals to humans and not robots to advance libertarianism, you make all of these doctrinally irrelevant point about how those subject to forfeiture, eminent domain, or whatever property rights fetish you are advancing at the moment. The contradiction is blatant.

A judge can choose not to let empathy influence his decisions without becoming a "robot." As for the points that I make about property rights, none of them require anyone to base decisions based on empathy. Even a person who feels zero empathy for the poor or for property owners can follow the logic of my arguments.
9.9.2009 6:12pm
Ilya Somin:
Putting your ego aside, no one really cares what you think.

Except for those people who care so much they write lengthy comments about my posts. Thanks for caring!
9.9.2009 6:18pm
NickM (mail) (www):
David - obsess much with Ilya, do we?

You have apparently missed that there is doctrinal relevance having nothing to do with empathy for both of the facts Ilya cited. The timing of a hearing is directly relevant to whether there is a taking of property without due process, and whether the burden of a government action disproportionately affects groups that are considered less able to participate in the democratic process has a long history (e.g., Carolene Products) of being considered with suspicion as a possible equal protection and due process violation. This has nothing to do with how those people would feel about it.

Oh, and go ahead and think that you're extremely unlikely to get caught up in it. All you need is one police officer (perhaps someone you have personally annoyed) to stop your car and seize it claiming a suspicion of drug activity. You practice criminal defense law. You don't have any police officers who hate you?

Nick
9.9.2009 6:27pm
troll_dc2 (mail):
I think David Welker went way over the top, but I find myself sort of agreeing with this small portion of his rant:


Most of the time, like some other "conspirators" and unlike others, I find you predictable. You rarely surprise me -- my basic view of you, which remains unchanged -- is that you are a rather doctrinaire libertarian of sorts who merely echoes slightly innovative but nonetheless unpersuasive justifications for your preexisting beliefs.

It may not matter to any of the Conspirators, but what I really want from this site is fresh analysis that causes me to think a lot and, if I have thought about a matter in the past, to reconsider my views. Some of the professors do a really good job of this; they have their viewpoints, to be sure, but they can go beyond them to give me a sense of the universe of possibilities and to raise further questions in my mind. In a way, it is like being in an online, advanced law-school class with them, which I find intellectually satisfying. But maybe I am asking for too much.
9.9.2009 6:55pm
Fub:
David Welker wrote at 9.9.2009 5:35pm:
I wouldn't want to go without my car for 187 days before I even go a hearing, would you? Of course, I am highly unlikely to ever get caught up in this sort of situation, therefore, it involves empathy for me to say that this is unreasonable.
I don't doubt that you are unlikely, but only because statistically every citizen is unlikely. However, to attribute that low probability to any particular personal attribute such as being law abiding is an error.

In practice, seizure for forfeiture often has little to do with whether a person whose property is targeted has violated a law (or is even reasonably suspected of violating a law), and mostly to do with whether the local constabulary needs money, or wants to politically grandstand, and believes they can get away with it. Before some states legislated very basic reforms, their police were pocketing forfeited money personally. Some likely still are nothing more than armed robbers with badges.

For a tour of forfeiture's little shop of horrors, see the long established website of the nonprofit organization F.E.A.R., Forfeiture Endangers American Rights.
9.9.2009 7:01pm
Andrew J. Lazarus (mail):
Descartes nailed this one: "Nothing is more fairly distributed than common sense: no one thinks he needs more of it than he already has."

I have no idea whether empathy influenced her decision. All I know is that empathy was unnecessary to reach the right conclusion in this case, since it could readily be based on the text of the Fourteenth Amendment and simple common sense.
I'm afraid this begs the question: why do so many judges (including some generally considered conservative and some whom I believe you usually admire) not agree with you about which is the "right" conclusion? The idea that the "right" decision is so obvious is, might I suggest, presumptuous, and I suggest that you wouldn't try such a simplistic argument except for dislike of the alternative of acknowledging a judge's life experience in understanding real-world implementation of theoretical concepts like "due process". For example, Brown relies heavily on the observed effects of segregation than on a debate about the text of the Fourteenth Amendment mixed with common sense. Of course, some libertarians seem upset by Brown.
9.9.2009 7:22pm
markm (mail):
Aside from timeliness issues, according to Balko under the Illinois law the prosecutor wins a forfeiture case by showing "probable cause". Now, I am not a lawyer, but as I understand it, "preponderance of evidence" basically means more than 50%. So does "probable cause" mean less than 50%???
9.9.2009 7:35pm
Harvey Mosley (mail):

David Welker (www):
First,...





...The contradiction is blatant.


Wow, those spambots are getting good.
9.9.2009 8:01pm
Ilya Somin:
I'm afraid this begs the question: why do so many judges (including some generally considered conservative and some whom I believe you usually admire) not agree with you about which is the "right" conclusion? The idea that the "right" decision is so obvious is, might I suggest, presumptuous, and I suggest that you wouldn't try such a simplistic argument except for dislike of the alternative of acknowledging a judge's life experience in understanding real-world implementation of theoretical concepts like "due process".

I don't claim that the right conclusion is "obvious." I claim that it can be reached without reference to empathy. Those judges who reach opposite conclusions do so because either 1) they are not textualists, 2) they are relying on their own empathy for law enforcement officials (a common form of empathy among judges), or 3) they feel bound by dubious precedents that I think either do not apply or should be overruled.

I suggest that you wouldn't try such a simplistic argument except for dislike of the alternative of acknowledging a judge's life experience in understanding real-world implementation of theoretical concepts like "due process". For example, Brown relies heavily on the observed effects of segregation than on a debate about the text of the Fourteenth Amendment mixed with common sense.

One can consider the observed effects of segregation without relying on empathy. A better approach when consideration of empirical facts is necessary in a legal case is to rely on systematic analysis of the available evidence. Empathy is not a synonym for "knowledge of the world." It is sympathetic identification with another person's subjective feelings. No one doubts that judges sometimes need to consider real world facts. That is not the point at issue in the debate over empathy. I discuss this point in more detail in this post.
9.9.2009 8:02pm
ChrisTS (mail):
Ilya:
Empathy is not a synonym for "knowledge of the world." It is sympathetic identification with another person's subjective feelings

I agree with your definition [as one meaning of 'empathy'] in my old-fashioned way. However, I think many people use it more broadly to mean something like 'be able to see X from another's perspective.' That does not require identification with another's subjective state.

I do think your 'knowledge of the world' is a bit hyper-rationalistic, if we think of something along the lines of " able to comprehend others' positions and to see matters from the perspective of their positions."

I assume that torturers know that torture is painful and debasing. I suspect they are not able - or have supproessed the ability - to understand the situation from the perspective of the their victims.
9.9.2009 8:11pm
J. Aldridge:
Under the 14th Amendment's Due Process clause, a state may not "deprive any person of life, liberty, or property, without due process of law." If Illinois' forfeiture law isn't a violation of the property portion of the Due Process clause, it's hard to fathom what would be.

Isn't a law on forfeiture actually a process of law?
I refer to the case of Murray vs. The Hoboken Land and Improvement Co., 18 Howard, 280. In that case land was seized on a Treasury warrant issued to the United States marshal, and sold. The question raised and decided in the case was whether upon a warrant issued by the Treasury land could be seized and sold by the marshal without the intervention of a jury. The validity of the act of Congress authorizing such seizure and sale was sustained by the Supreme Court and stands to-day unchallenged, declaring that the phrase "due process of law" means the law of the land. (Bingham, Cong. Globe, 42nd, 2nd Sess., 2394 (1872))

Since Bingham defined the Fourteenth's "due process" of life, liberty and property a half-dozen times as being the words of the 39th chapter of the Magna Charta, did forfeiture ever come within that clause?
9.9.2009 8:34pm
Fub:
markm wrote at 9.9.2009 7:35pm:
Aside from timeliness issues, according to Balko under the Illinois law the prosecutor wins a forfeiture case by showing "probable cause". Now, I am not a lawyer, but as I understand it, "preponderance of evidence" basically means more than 50%. So does "probable cause" mean less than 50%???
IANA forfeiture expert or practitioner, but my understanding is that your assumption is correct under some state laws.

I think this double standard was eliminated or significantly changed in 1990s federal forfeiture law reform, due to efforts of the late Henry Hyde.

Basically, the state keeps the property if they can demonstrate "probable cause" that they believed it was used for some illegal purpose. The standard is the same as "probable cause" for a search warrant. The state may use hearsay evidence to establish its proof. An innocent property owner has the burden of proof to demonstrated the property was not so used by a preponderance of evidence, and is not allowed to bring hearsay evidence.

You will find some of Hyde's comments on some burden of proof issues here.
9.9.2009 8:38pm
ohwilleke:
The question upon which certiorari was granted is: "In determining whether the Due Process Clause requires a state or local government to provide a postseizure, probable cause hearing, prior to a forfeiture of property, should the district court apply the test employed in United States v. $8,850 or that in Mathews v. Eldridge?"

The former case held that:

On the facts, the Government's 18-month delay in filing a civil proceeding for forfeiture of the currency did not violate the claimant's right to due process of law. Pp. 562-570.

(a) The balancing test of Barker v. Wingo, 407 U.S. 514, developed to determine when Government delay has abridged the right to a speedy trial, provides the relevant framework for determining whether the [461 U.S. 555, 556] delay in filing a forfeiture action was reasonable. That test involves a weighing of four factors: length of the delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Pp. 562-565.

(b) In this case, the balance of factors under the Barker test indicates that the Government's delay in instituting civil forfeiture proceedings was reasonable. Although the 18-month delay was a substantial period of time, it was justified where there is no evidence that the Government's investigation of the petition for remission or mitigation was not pursued with diligence or that the Government was responsible for the slow pace of the criminal proceedings. Nor is there any evidence that Vasquez desired early commencement of a civil forfeiture proceeding, she never having used the available remedies to seek return of the seized currency, and she has never alleged or shown that the delay prejudiced her ability to defend against the forfeiture. Pp. 565-570.


In the latter case:

Mathews v. Eldridge, 424 U.S. 319 (1976), is a case in which the United States Supreme Court held that individuals have a statutorily granted property right in social security benefits, that the termination of those benefits implicates due process, but that the termination of Social Security benefits does not require a pre-termination hearing. . . .

In determining the amount of process due, the court should weigh three factors:

(1) The interests of the individual in retaining their property, and the injury threatened by the official action
The risk of error through the procedures used and probable value, if any, of additional or substitute procedural safeguards;
(2) The costs and administrative burden of the additional process, and the interests of the government in efficient adjudication
(3) Social security benefits are a statutorily created property right implicating due process.

Termination of social security benefits does not require a pre-termination hearing.


In the opinion below:

[T]he plaintiffs argue that Good and
Krimstock v. Kelly, 306 F.3d 40 (2nd Cir. 2002), establish
that the proper due process analysis for their claim is set
out in Mathews, rather than in Barker [which was decided under the U.S. v. $8,850 test]. . . . The Krimstock court properly, we think, distinguished Von Neumann and $8,850. $8,850 concerns the speed with which the civil forfeiture proceeding itself is begun—a different question from whether there should be some mechanism to promptly test the validity of the seizure.


Also notably, the 7th Circuit case is one where the 7th Circuit overturned a binding 1994 precedent of the circuit, on the grounds that it was ill reasoned. The plaintiffs argued in the trial court that they lost under 7th Circuit law but that the 7th Circuit was misapplying U.S. Supreme Court precedents.

The fact that Krimstock was authored by Sotomayor and involving very similar facts to the Illinois cases suggests that these connections may be what make it attractive.

So, I wouldn't give up hope yet.

A small but persistent part of the cert pool is made up of cases with very extreme facts where the court wants to make national law, even in the absence of a circuit split, or where they think that some lower courts have screwed up their precedents.

They want to put in their own two bits about some outrageous situation, to discourage anyone anywhere from even thinking about repeating it. For example, this helps explain why the court took a couple of its non-capital corporal punishment cases, in instances that were ideosyncratic to a single state and not used widely at the time.

This may also be a case of the liberal judges on the court acting strategically.

The due process issues in this case are likely to come up again in the near future in the far less morally clear area of national security/terrorism related seizures. This case is the property analog to cases like Padilla and Hamdi and Al-Mari. Cementing a new rule in this context as well established constitutional law would clear the way with precedent for more decisive action elsewhere.

The due process issue in this case also has a great impact on the issue of government debt collection, particularly in securities law, tax and child support cases, which sometimes take place outside the courts. (Private foreclosures and repossessions have been held not to constitute state action in cases that remain stable precedent).

$8850 involves a defendant who was facing criminal prosecution, and SCOTUS may want to bring up the difference between criminal defendants and those who have no parallel criminal cases at issue.

A footnote from the option below also is interesting: "We even mentioned Mathews—though we did not need to reach the issue—in a case involving the seizure of a dog (Wall v. City of Brookfield, 406 F.3d 458 (7th Cir. 2005))."
9.9.2009 8:56pm
Ilya Somin:
The fact that Krimstock was authored by Sotomayor and involving very similar facts to the Illinois cases suggests that these connections may be what make it attractive.


Maybe. But cert was granted months before Sotomayor was appointed or confirmed. So her role in Krimstock probably played little or no role in the decision to grant cert.
9.9.2009 9:26pm
Zero Respect:
Ilya Somin I have always not liked your views and more importantly, you. Thanks to David Welker for giving me more meritorious reasons to not like him.
9.10.2009 12:36am
egd:
I, for one, think that David Welker is totally on point in this situation. This case would be decided completely differently, and rightly should, if the seizure of assets had occurred to a rich, or at least politically connected, white man.

A seizure of property is legitimate and constitutional when the property is taken from a connected white person because he obviously got it by fraud, greed, or in some way disadvantaging non-rich or non-white people. Therefore, the state has an interest in reclaiming that property and giving it back to its rightful owners.

But when property is seized from a non-connected and non-white individual, then such seizure is plainly unconstitutional, because it violates the Fourth Amendment.

Without the use of empathy, we wouldn't be able to make this important distinction between classes of people, and so empathy is an important and valuable tool in constitutional interpretation.
9.10.2009 9:06am
ArthurKirkland:
I believe this case is more difficult to predict than many believe (the decision to take the case bolsters that point, in my view).

Authoritarian, pro-prosecution, pro-establishment reflexes battle common decency, limited-government principles and concern for the underdog. I expect a close vote.

This case may resemble Caperton v. Massey with respect to broad ideological currents among the justices, even to the point of provoking similar headscratching concerning the voting lineup.
9.10.2009 9:19am
Per Son:
I have always found forfeiture laws suspect. Consider the laws that allow police to snatch cars if the car was used to procure a street walker.

If you pick up a prostitute in a shiny new benz - the value of what is forfeited can exceed 100k. If you pick up the prostitute in a rusty ole' Crown Victoria - the value may be less than 1k.

So you have the same crime, but massively different penalties. Seems kinda unfair.
9.10.2009 11:51am
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Hi everyone
I was thinking about purchasing Copy n Profit. Has anyone used it or heard anything about it? Sounds to good to be true. I found this following review site about it as well: http://copynprofit-reviews.com/copynprofit-review
Please give me your opinion.
9.10.2009 1:02pm
anomdebus (mail):
At the risk of drawing attention to the wrong sort, I will just offer an unrelated(?) aphorism: if it seems to good to be true, it is.
I hope this comment ends up being unrelated to the case being discussed.
9.10.2009 1:36pm
anomdebus (mail):
I realize only now I should have used "Holden Caulfield" as my name...
9.11.2009 10:27am

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