Monthly Archives: June 2011

The Fourth Amendment litigation frontier, administrative warrantless search edition

Eugene Volokh:

I speculated that the reason the four Justices did not vote to grant certiorari (it only takes four votes to grant) is likely that, as Rule 10 suggests, the Justices rarely grant simply because of an erroneous decision of a state intermediate court of appeals; they generally wait until there is a disagreement among federal circuit courts of appeals or state supreme courts. But they are trying to signal to lawyers that this is an issue worth litigating.

The case is Huber v. N.J. Dep’t of Environmental Protection, which now goes to the New Jersey Supreme Court:

Statement of Justice Alito, with whom the Chief Justice, Justice Scalia, and Justice Thomas join, respecting the denial of certiorari.

Our cases recognize a limited exception to the Fourth Amendment’s warrant requirement for searches of businesses in “closely regulated industries.” See, e.g., New York v. Burger, 482 U. S. 691, 699–703 (1987) (internal quotation marks omitted). The thinking is that, other things being equal, the “expectation of privacy in commercial premises” is significantly less than the “expectation in an individual’s home.” Id., at 700. And where a business operates in an industry with a “long tradition of close government supervision” — liquor dealers and pawnbrokers are classic examples — the expectation of privacy becomes “particularly attenuated.” Ibid. (internal quotation marks omitted).

In this case, a New Jersey appellate court applied this doctrine to uphold a warrantless search by a state environmental official of Robert and Michelle Huber’s backyard. No. A–5874–07T3, 2010 WL 173533, *9–*10 (Super. Ct. N. J., App. Div., Jan. 20, 2010) (per curiam). The Hubers’ residential property contains wetlands protected by a New Jersey environmental statute. See N. J. Stat. Ann. §13:9B–1 et seq. (West 2003 and Supp. 2010). According to the court below, the presence of these wetlands brought the Hubers’ yard “directly under the regulatory arm” of the State “just as much” as if the yard had been involved in a “regulated industry.” 2010 WL 173533, *10. This Court has not suggested that a State, by imposing heavy regulations on the use of privately owned residential property, may escape the Fourth Amendment’s warrant requirement. But because this case comes to us on review of a decision by a state intermediate appellate court, I agree that today’s denial of certiorari is appropriate. See this Court’s Rule 10. It does bear mentioning, however, that “denial of certiorari does not constitute an expression of any opinion on the merits.” Boumediene v. Bush, 549 U. S. 1328, 1329 (2007) (Stevens and KENNEDY, JJ., statement respecting denial of certiorari).

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From Smith to Coase, the most fascinating article I’ve read in a while

“The Schumpeterian corporation was about colonizing individual minds. Ideas powered by essentially limitless fossil-fuel energy allowed it to actually pull it off.”

That’s from this essay by the utterly fascinating Venkatesh Rao. HT Tyler Cowen.

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Contra Ann Coulter on marriage

Ann Coulter, the notorious right-wing radical hack, takes on “libertarian” stances on gay marriage and drug legalization today over at Human Events. Particularly, she asks (in response to Rep. Ron Paul’s political stances on gay marriage) the following:

If state governments stop officially registering marriages, then who gets to adopt? How are child support and child custody issues determined if the government doesn’t recognize marriage? How about a private company’s health care plans — whom will those cover? Who has legal authority to issue “do not resuscitate” orders to doctors? (Of course, under Obamacare we won’t be resuscitating anyone.)

Who inherits in the absence of a will? Who is entitled to a person’s Social Security and Medicare benefits? How do you know if you’re divorced and able to remarry? Where would liberals get their phony statistics about most marriages ending in divorce?

Ann Coulter here shows her inability to conceptualize of solutions to marriage issues that exist outside the box (or cave) that she slums in.

If state governments stop registering marriage, that does not mean that adoption agencies should not appropriately vet potential foster parents (nor that adoption agencies should not face some kind of regulation or state control). Moreover, Coulter assumes that the only way that we can vet foster parents is through marriage registries, which I read to say that Coulter does not believe that single parents or widowers should be allowed to adopt. I propose to you that the only relevant questions that we could use to vet foster parents are A) are you willing and B) are you capable of raising this child? To restrict the pool of potential foster parents further is unnecessary and leaves many children without stable home environments.

We might further posit that child support and child custody issues might be resolved by paternity tests, and the existing body of law regarding the responsibilities parents have toward their children. Ann Coulter does not seem to understand that there is a wide, deep, and ancient body of common law that has grown to mediate these issues, nor does she seem to understand that these issues can be mediated without the state taking an active role in registering the actual marriage contract.

And this argument is broadly applicable against the entire scope of Coulter’s argument. Free people…Americans…have wrestled with these issues, and have been able to develop institutions (both public and private) to manage the intersection and interaction of things like marriage, and parenting, and legal succession.

Rather than listening to Ann Coulter, Americans would be well advised to live freely, and take advantage of the world’s most advanced legal system to mediate their lives. Governments do not need to intrude so far as the bedroom, or the domicile, for Americans to realize the full potential of their freedoms and liberties.

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Contra Alexander of Pharae

But when Pelopidas advised the complaining Pheraeans to be comforted, as if the tyrant was now certain in a short time to smart for his injuries, and sent to tell him, “That it was absurd daily to torment and murder his wretched innocent subjects, and yet spare him, who, he well knew, if ever he got his liberty, would be bitterly revenged;” the tyrant, wondering at his boldness and freedom of speech, replied, “And why is Pelopidas in haste to die?” He, hearing of it, rejoined, “That you may be the sooner ruined, being then more hated by the gods than now.”

-Plutarch, Life of Pelopidas

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Relevant to Washington, D.C.

From Umberto Eco’s “Name of the Rose”:


“Then we are living in a place abandoned by God,” I said, disheartened.
“Have you found any places where God would have felt at home?” William asked me, looking down from his great height.

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Sentences to ponder

“It is worth clarifying that the problem is rent-extraction, not high taxes per se.”

That’s from Reihan Salam.


The synesthesia of Barolo

Rose, tar (maybe from the hot asphalt of a highway in the Missouri sun), saddle leather…

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Sentences to ponder

“Ours is not too far from the system you’d design if you wanted health care to cost as much as possible.”


“Some government spending gives folks stuff they want. Some government spending is worse than stealing money, throwing it in a hole and burning it. This is obvious when you think about it for a second, but it sometimes seems that partisan political discourse is based on the refusal to think about it at all.”

-From Will Wilkinson

Something that I am increasingly uncomfortable with…

…is the ‘pill culture’ that seems to be pervasive in high schools, colleges, and youth culture.

Sterling contra Nixon

I excerpt the section titled “Costs” of Eric Sterling’s June 2nd memorandum on the War on Drugs, but you should read the whole thing:

Nixon asked for an additional $159 million dollars for his initiatives, plus an unspecified amount to pay 325 additional positions in the Bureau of Narcotics and Dangerous Drugs (forerunner to the DEA).

Over the past 40 years, with leadership from successive presidents and “drug czars,” and enthusiastic support from Congress, the Federal government has spent, cumulatively, about a half trillion dollars on the “war on drugs.” By FY 1975, federal anti-drug spending had climbed to $680 million. For the past 20 years, Federal spending on drugs has exceeded $15 billion per year including the costs of imprisonment.

The costs are now so high, the “drug czar” seems to conceal almost one-third of the anti-drug spending by excluding it from the formal anti-drug budget. ONDCP says that $14.8 billion was spent in FY 2009 to fight drugs. But another $6.9 billion was actually spent in FY 2009 on fundamental anti-drug activity such as the incarceration of federal drug prisoners.

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