Last year, Orin Kerr and I had an extensive debate on the VC over AmeriSource Corp. v. United States, an important case in which the Federal Circuit Court of Appeals ruled that the Takings Clause does not require the government to compensate innocent property owners for destroying their possessions by seizing them in the course of a criminal investigation.
Interested readers may want to know that AmeriSource has filed a cert petition to the Supreme Court. Columbia University Law Professor Ronald Mann, counsel for AmeriSource, has posted the cert petition. the government's opposition brief, and AmeriSource's reply brief. For the reasons I discussed in the original series of posts on AmeriSource, I think this is an important issue, and I hope that the Court decides to hear the case.
UPDATE: I have corrected the flawed link to the opposition brief.
Resolving a circuit split is not the only, or even the most important, possible reason for the Supremes to hear a case.
It isn't the only reason, of course. But as a descriptive matter, it is surely the most important.
Actually, the rule Orin links to merely says that a circuit split is one of three listed rationales for granting cert. This case, to my mind, falls under Rule 10(c), which the rule lists as on par with a circuit split:
Of course, empirically, a circuit split makes a grant of cert far more likely. But nothing requires the Court to treat this as the most important possible reason for a grant.
I think it would be interesting if a respondent answered a cert petition by simply filing a copy of the opinion below, with the suggestion being that it speaks for itself, but I don't think that's what they did here. It looks like an issue with the Columbia webpage.
The Justices aren't required to do anything: They write the Rules in the first place, and they can grant everything or nothing if they feel like it. I'm just suggesting that absent a split, this doesn't seem to have any legs.
I like the line of thinking, but most seizures are by state officials; a 1983 action against state officials could arise in any circuit, I would think.
I recall a post here (that I think was by you Professor Kerr) on the subject of amicus briefs at the cert stage. As you've both expressed interest in this topic and have participated in litigation of interest to you before, are we likely to see amicus briefs from either of you in this litigation?
I realize it would likely be impractical for you to submit amicus briefs for every appeal in your areas of interest, and for that matter I don't even know what the Court's rules or guidelines are for allowing people to submit amicus briefs (I know that I, for instance, am unlikely to have any petition I file for leave to file a brief as amicus curiae granted by any court). I was just curious about it, and about how each of you generally makes the decision whether or not to file an amicus brief.
For me, it is some function of 1) the importance of the case to my areas of interest, 2) how good a vehicle it is for moving the Court's jurisprudence in what I think is the right direction, and 3) how much time I have available. When I write an amicus brief, it is usually on behalf of some public interest group or a group of professors, rather than in my own name alone.
I've filed amicus briefs before when I really really cared about an issue; when I thought I had special expertise that could shed light that other briefs wouldn't provide; and when I thought my participation had realistic chance of altering the outcome or nature of the opinion. That's more or less the criteria I use, anyway.
Heh.
So far, at least, the two professors have been "brief" in their comments.
It's a blessing when legal beagles can make points without causing one's eyes glaze over. ;)
If seizing property from third-party innocents imposes compensation costs on the government, perhaps prosecutors will begin to take that into account and reach much more careful decisions as to whether they really need the property for evidentiary purposes. And they might be much more ready to release property they do need for evidentiary purposes after the conclusion of the criminal process.
Here in Los Angeles the police seem to think they can keep as drug paraphernalia things that have innocent uses--like expensive scales--even though they don't bring any drug or paraphernalia charges against the owner of the scales for lack of evidence of iillegal use.
Sometimes photographs of the seized property are just as good for evidentiary purposes as the property itself, but law enforcement insists on keeping the property itself and tying it up for years.
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