Electronic copy available at: http://ssrn.com/abstract=2129954Electronic copy available at: http://ssrn.com/abstract=2129954

SOUTHWESTERN  LAW  SCHOOL

 The  Right  to  Civil  Defense  in  Torts  Chapter  3:  Due  Process  and  Civil  Defense  

Alan Calnan

DRAFT 8/15/2012

Electronic copy available at: http://ssrn.com/abstract=2129954Electronic copy available at: http://ssrn.com/abstract=2129954

CHAPTER 3

DUE PROCESS AND CIVIL DEFENSE

The emergence of the constitutional right to due process marked the culmination of a political movement that finally placed individual liberties above state sovereignty. Though born from the excesses of British colonial policy and the inadequacies of early American criminal law, the concept of due process was neither a sudden nor a circumstantial innovation. Instead, as we shall see below, due process has shaped the common law almost from its inception, and has checked state power at every level. Despite its criminal pedigree, one of the right’s first priorities was to regulate the law’s earliest civil actions. That mission only intensified as the common law entered modernity. At each stage, due process incrementally assembled a right to civil defense against wrongful civil recourse. Today, that concept continues to control various aspects of tort litigation, and soon may determine whether and when such actions are filed.

The Preferred Process of Self-Help

The shared history of due process and civil defense begins in

England’s Anglo-Saxon period, before the Norman Conquest or the formation of the English commonlaw system. Because England had been invaded and settled by a number of different tribes,1 there was no ancient constitutional right to recourse or even a uniform process for righting wrongs.2 In fact, there was little public “law” whatsoever.3 There were only occasional ad hoc measures taken by kings and their administrators to abate the disruptive infighting of their bitter and disagreeable subjects.4 When conflicts arose, the crown had neither the power nor the inclination to impose its will.

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Instead, it placated the combatants by deferring to their existing institutions.5 In this premodern era, local custom determined the rules of private engagement, and individual initiative provided the sole means of enforcement.

The abundance of self-help options attests to the preference for personal justice. A blood feud permitted next-of-kin to avenge a relative’s wrongful death by either killing the perpetrator or exacting compensation from the killer’s family.6 When someone’s property or animals caused another loss, the victim could demand the forfeiture or destruction of the item, called a deodand or gift to God.7 Another possible response was to distrain the offender’s goods. As noted in the last chapter, distraint allowed a landholder to seize another’s property if its owner wrongfully left the object on the distrainor’s land or the owner failed to satisfy some preexisting obligation or debt.8 Finally, if an interloper seized the property of another, the landowner could oust or disseise the culprit and retake lawful possession.9 In each case, the disgruntled party was expected “to fight for his rights, and have recourse to the courts only if self-help failed.”10

The Defensive Origins of Civil Process

It was not until the twelfth century that a true “national”

justice process came into existence. At that time, King Henry II created a centralized judicial system to hear disputes from all over the realm.11 However, the primary impetus for this move was not to help aggrieved parties redress their wrongs, as civil recourse theorists now claim.12 In fact, just the opposite is true. The purpose of the new civil process was to protect people from irate vigilantes, unscrupulous litigants, and corrupt court officials who weakened and eventually helped to destroy the prevailing local systems of private dispute resolution.13

That protection began as a promise. Every king swore an oath to rectify the law and protect the defenseless.14 To fulfill that obligation, the crown implemented a variety of new institutions and procedures. Early on, if a litigant complained about a local

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judge, the king could issue a writ commanding the official to do right by the complainant.15 Such complaints proliferated so greatly that these “writs of right” became extremely commonplace. 16 Eventually, every plaintiff had to obtain a writ before he could sue in a baronial court.17 Where no writ was issued, the defendant could not be forced to stand trial.18 But even when the plaintiff secured a writ, his right to recourse was not guaranteed. Instead, the defendant could employ a number of dilatory tactics or assert a variety of tenuous excuses to slow or escape the proceedings.19 In effect, the writ system “put the onus on the plaintiff to notify the Crown of intended litigation, and saved the Crown having to intervene in litigation which had begun by giving it a power of veto over whether the action should start.”20

But even this process did not provide sufficient defense against questionable claims. As court dockets expanded, the royal judiciary exerted still greater control over abusive lawsuits. Travelling judges, called justices in eyre, were dispatched across the countryside “to investigate the work of local officials,” 21 including, most especially, overzealous sheriffs and corrupt lords who used their status to terrorize or exploit the unjustly accused.22 Such judicial review also could work in reverse. By granting writs of pone to dissatisfied litigants, the bench sitting permanently at Westminster, the government center, could take immediate jurisdiction over local cases mishandled by their brethren below.23

As such dissatisfaction grew, the royal courts had little choice but to accept original jurisdiction over certain types of cases. However, their goal was not to expand the right to recourse, but rather to limit it. Initially, self-help and local reprisal remained the preferred means of private dispute resolution, so most wrongs were not civilly actionable at all. Royal writs were available only for offenses that directly concerned or threatened the crown, and few of these provided much if any relief for injured victims. As we learned in chapter 2, the appeal of felony permitted victims to sue solely for particularly heinous conduct and offered them no compensation unless they were able to convince their adversaries to settle their claims.24 Though the writ of trespass vi et armis

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allowed compensatory damages, it applied only to forceful acts and serious injuries and required the deposit of a hefty security bond.25 In each case, the new “civil” recourse was not bestowed as an individual right according to some higher law, but rather was cautiously delegated as a royal privilege to reinforce the crown’s legal and political supremacy.

The disposition of negligence cases only confirms this fact. Early on, the burgeoning commonlaw system lacked any official process for handling claims of ordinary negligence. Because merely careless actors created little social disturbance, the new English judiciary felt no urgency to commit its still modest resources to these relatively trivial matters. In fact, it was especially suspicious of such claims. Unlike intentional trespasses, negligent conduct was not obviously or inherently wrongful, but rather was subject to interpretation under the surrounding circumstances. Unfortunately, circumstances depended on facts, and facts depended on witnesses who could be mistaken, dishonest, or intimidated. Fearful of concocted litigation, the royal bench simply relegated these claims to the provincial justice mechanisms already in place.26

Over time, advances in technology and transportation dramatically spiked the rate of unintentional injuries. 27 These accidents, in turn, sparked an upsurge in royal litigation. Disenchanted with local practices, victims and their lawyers increasingly flooded the king’s bench with benign mishaps disguised as forceful encounters.28 Initially, judges responded by dismissing these actions on procedural grounds.29 Gradually and reluctantly they relented, first recognizing the action of special trespass, and ultimately creating the catch-all action of trespass on the case.30

While these actions offered ordinary subjects greater recourse to the royal courts, they actually served to curtail recourse rights overall. The expansion of royal jurisdiction caused a corresponding contraction in private and local justice. Victims who formerly exacted their own vengeance now had to follow a rigorous process of litigation. They could not simply confront suspects or condemn

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offenders in front of a few noblemen. Instead, plaintiffs had to purchase the correct writ, post a sizable bond, and plead legally sufficient facts to a seasoned jurist or a jury of their peers.

Though early litigants could earn victory by physical battles or religious rituals, later plaintiffs had to prove the merit of their accusations. Such proof, however, could be difficult to produce. In trespass actions, the plaintiff’s injury had to arise “by force and arms” and “against the king’s peace.”31 Thus, he likely would not prevail unless he could find a brave witness willing to testify against his allegedly belligerent offender. In actions of trespass on the case, the burden of proof was even more onerous. Here, the plaintiff had to justify her claim by showing that the defendant breached a customary duty and caused the plaintiff actual damage. 32 Customs, however, could vary by community and change over time. Because the customary violation often created ongoing dangerous conditions like unsanitary waste sites or leaky dykes,33 the plaintiff’s injury might not occur until long after the defendant’s act. Thus, the plaintiff might not be able to show how the condition arose or who brought it about.34 Even if such proof were available, the lapse of time presented the very real possibility of other causal agents, including perhaps the plaintiff himself.35 Assuming these high hurdles could be overcome, the plaintiff still had to show that such accidental conduct inflicted injuries justifying the deliberate appropriation of the defendant’s assets.

To modern eyes, these developments may seem to mark the beginning of a civil right to redress one’s wrongs. But that right had long existed in local tribunals under baronial, county, or customary law.36 The royal causes of action really diverted tort cases away from these traditional fora and reduced their numbers by imposing extra burdens on their suitors. The resulting effects were manifestly defensive in nature. Besides protecting alleged offenders from aggressive, informal, or arbitrary recovery attempts, the new tort process helped to secure the sovereign’s still fledgling justice system from resistance or outright rebellion.

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Requiring Due Process in State Proceedings Ironically, the crown’s new-found power was also the source

of its political vulnerability. Having assumed control over the administration of civil justice, the English government itself became justice’s biggest potential menace. Courts could host litigation to vindicate rights, but they also could deploy that power to harass or oppress captive defendants. This was no idle threat. Unlike plaintiffs, whose entry into the justice system was purely voluntary, defendants were forced to endure the crown’s mandatory process of adjudication. Thus, if that process denied them a fair defense, they stood helpless to prevent the loss of their liberty unless they were willing to fight the system itself.

Though all Englishmen were susceptible to government overreaching, that peril loomed largest for England’s noble class, whose power and wealth posed the greatest threat to the crown’s authority. To assuage this concern, feudal barons from around the country sought the king’s assurance that such royal institutions would not serve as tools of subjugation. They obtained this guarantee in 1215, when King John approved the Magna Carta.37 Though the charter granted free subjects a few positive rights—like the right of an underage heir to “exact compensation” from a land guardian who despoiled the child’s property,38 or the right of a widow to obtain her inheritance and remain in her husband’s house for forty days39—the general right to civil recourse was not among them. If anything, grounds for such a right were weakened by clause 34, which inhibited the king from seizing jurisdiction from the lords’ courts.40

As this clause suggests, the document actually set forth a bountiful list of negative rights to protect against sovereign tyranny. These protections addressed a wide array of concerns ranging from the king’s taxing power41 to his apparent displeasure with the “ancient liberties and free customs” of London and other cities.42 But many if not most of the charter’s provisions pertained to the king’s administration of justice. Some items placed direct restrictions on the royal courts. For example, clauses 17 and 18

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determined where and when the courts should convene,43 while clause 36 addressed how much justice could cost,44 and clause 45 decided who could be trusted to dispense it.45 Other entries dealt with the adjudication of cases. Clause 38 prohibited bailiffs from initiating prosecutions with nothing but bald assertions, requiring them instead to produce “credible witnesses to the truth.”46 Once judgments were reached, clauses 20 and 21 demanded that defendants be punished only in proportion to their offences and only after an “assessment on oath of reputable men of the neighbourhood.”47

The most momentous protections, however, were contained in clauses 39 and 40. Clause 39 promised that "[n]o free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."48 Echoing the security refrain that permeated the entire document, clause 40 reduced these safeguards to a single, simple maxim: “To no one will we sell, to no one deny or delay right or justice.”49 From this point forward, the crown could not persecute enemies on a whim, but could only prosecute legitimate suspects with reasonable rules and fair proceedings. Now no person could be deprived of liberty unless he first was afforded a chance to contest the taking. With the imprint of a royal seal, procedure finally had come full circle. What began as a shield against private harassment and later was forged into a sword of public oppression was suddenly restored as a shield against that very weapon. By conferring this protection, King John did not simply mollify a few of his rivals. He changed the terms of the existing social contract by adding the fundamental condition of due process.

On its face, Magna Carta’s due process concept appears to be directed against the king’s executive minions—sheriffs, jailors and the like—and judges conducting what we now call criminal prosecutions.50 But its reach was not so restricted. A person could be “stripped of his rights and possessions” in any number of essentially civil lawsuits, including the previously discussed

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actions of trespass and trespass on the case,51 and the property recovery actions of replevin and novel disseisin.52 Aside from the monetary judgments such actions could impose, virtually all civil cases required losing defendants to pay additional fines to the king. 53 Worse still, the crown could order the seizure and imprisonment of any defendant who was unable or unwilling to satisfy his royal debt.54 Thus, due process was not conceived as a narrow remedy for a specific problem, but rather as a general precaution against a systemic danger.

That precaution became a staple of England’s ancient constitution as monarchs reissued shorter versions of Magna Carta in the years following its promulgation.55 Eventually, the charter’s due process guarantee was expressly codified by statute. Its first appearance came in a 1354 act, which provided: “No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law.”56 By the seventeenth century, famed British jurist Edward Coke described due process as an embedded principle of English law, explaining that no man shall be deprived but by legem terrae, the law of the land, "that is, by the common law, statute law, or custom of England.... (that is, to speak it once and for all) by the due course, and process of law.”57

Britain’s exclusive claim to that bedrock principle would not last for long. In the eighteenth century, due process migrated to America where it quickly spread throughout the states. Maryland incorporated Magna Carta’s due process language into its state constitution,58 while New York enacted a statutory bill of rights with four different due process clauses.59 Eventually, this sporadic movement developed grass-roots support. As noted earlier, American colonists harassed by writs of assistance relied upon due process to resist the enforcement of general warrants, and ultimately, to challenge the authority of the British crown itself.60 Before long, the concept of due process became an entrenched constitutional right. Influenced by various state delegations, James Madison drafted and Congress adopted various due process provisions in the federal Bill of Rights,61 including the Fourth

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Amendment’s prohibition against unreasonable searches and seizures.

Since that time, due process has protected criminal defendants from arbitrary state action while mostly leaving civil defendants to fend for themselves. Though this disparate treatment has gone largely unexplained, obvious differences between the actions seem to support the double standard. Yet developments on each side of the law show the distinction to be more fortuitous than rational. Whether initiated by a private citizen or a public prosecutor, the state-aided lawsuit is both an exercise of police power and a restraint on the liberty of the party being sued. Thus, no matter what form it may take, that action is always a matter of constitutional concern.

Criminal Due Process Without Incarceration

In the criminal realm, the need for due process appears to

derive from the state’s exercise of control over the accused, which begins even before an action is filed. A criminal prosecution technically starts when the defendant is placed under arrest.62 The prosecutor then either files a complaint with the trial court or refers the matter to a grand jury which determines whether to issue an indictment.63 Either way, the defendant usually must attend a formal arraignment where she is notified of the charges against her and advised of her constitutional rights.64 In addition, the presiding judge will determine the defendant’s eligibility for bail and will set the appropriate bail amount. 65 If the court denies bail or the defendant fails to post it, she is taken into custody to await a preliminary hearing where the prosecutor must establish probable cause of her guilt.66

At this point—where the state physically restricts the defendant’s liberty—due process clearly attaches. Thus, if the state proceeds further without probable cause, it presumably violates the defendant’s Fourth Amendment right against unreasonable seizures.67 To redress that wrong, the defendant may assert a claim for malicious prosecution under § 1983 of the federal Civil Rights

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Act.68 In that action, the defendant can recover for the mental anguish, reputational harm, lost wages, and defense fees resulting from her wrongful arrest and detention.69

But what happens when the defendant is not incarcerated? Because the defendant released on bail substantially retains her autonomy throughout the prosecution, 70 the demands of due process may seem insignificant or even unnecessary. Yet a closer look yields a different conclusion. Even if the defendant is not confined, she still faces the daunting task of defending herself in court—a burden onerous enough to warrant constitutional scrutiny.

This was the admittedly muddled message of the United States Supreme Court in Albright v. Oliver. 71 In Albright, Illinois authorities issued a baseless warrant for Albright’s arrest. When Albright learned of the warrant, he surrendered himself to local officials and was immediately released on bail. The lower court later dismissed the charge on the ground that it did not constitute a recognized criminal offense. Albright filed a section 1983 action against both the arresting officer and the city that employed him, arguing that the groundless prosecution violated Albright’s substantive due process rights. While a plurality of the Supreme Court affirmed the dismissal of Albright’s complaint,72 several Justices would have allowed his case to proceed.73 Within the plurality, the consensus was not that Albright’s claim lacked merit, but rather that he had asserted the wrong theory of recovery. Instead of relying on the general notion of substantive due process, Albright should have invoked the Fourth Amendment’s explicit protection against unreasonable seizures.74

Despite the Court’s split decision, most of the Justices seemed to agree that Albright enjoyed a constitutional right to be free from groundless prosecution. The opinion of the Court, which was written by Chief Justice Rehnquist and joined by Justices O’Connor, Scalia, and Ginsburg, expressed no view as to whether Albright might recover under the Fourth Amendment, since he had not raised that issue on certiorari.75 However, Justice Ginsburg, in her own concurring opinion, pressed a bit further. Focusing on the Fourth Amendment’s seizure requirement, Ginsburg noted that

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Albright “unquestionably” was seized when he turned himself in and his seizure continued “in the constitutionally relevant sense” even after he posted his bond and secured his release from custody.76

The remaining Justices were even more open in their support of Albright’s cause, if not his chosen cause of action. Fellow concurrers, Justices Kennedy and Thomas, argued that absent a state tort remedy for wrongful prosecution, “there would be force to the argument that the malicious initiation of a baseless criminal prosecution infringes an interest protected by the Due Process Clause and enforceable under § 1983.”77 Justice Souter agreed in a separate concurring opinion. Highlighting the distinction between initiation and arrest, Souter argued that while most constitutional harms result from arrest, “[t]here may indeed be exceptional cases where some quantum of harm occurs in the interim period after groundless criminal charges are filed but before any Fourth Amendment seizure.”78

Justices Stevens and Blackmun removed all hesitation from Souter’s cautious speculation, defining the right against litigation in the strongest possible terms. Noting that “the accusation itself causes a harm that is analytically, and often temporally, distinct from the arrest,”79 Justice Stevens expressed “no doubt” in his dissent “that an official accusation of an infamous crime constitutes a deprivation of liberty worthy of constitutional protection.” 80 Even if the defendant is not arrested, Stevens reasoned, a prosecution “may seriously…disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.”81

Although Albright specifically addresses only criminal prosecutions, it has obvious and weighty implications for the civil justice system. If due process attaches at the commencement of a legal action, and does not depend on whether the state physically seizes or holds the defendant prior to trial, then there is little constitutional distinction between criminal and civil litigation. Granted, a criminal prosecution may carry a greater risk of

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stigmatization, and its threat of incarceration may heighten the accused’s level of stress. But the types of harms caused by the initiation of litigation are virtually the same. In civil cases, like criminal prosecutions, the defendant typically will have to hire an attorney, attend lengthy proceedings, answer adversarial questions, take time off from work, endure strains on her personal relationships, and generally worry about how the outcome will affect her reputation and financial security. These impairments to liberty may not be as severe as an arrest or release on bond, but they are serious and debilitating nonetheless. Thus, they are a troublesome feature of the tort system, and a legitimate concern of due process.

Due Process in Civil Litigation

Until recently, these truths have remained mostly

undiscovered, in part because they have been partially hidden from view. Unlike the Fourth Amendment’s probable cause requirement, the right against unsubstantiated civil litigation has no specific counterpart in the original Bill of Rights. Yet civil due process is not devoid of constitutional support. Section 1 of the Fourteenth Amendment to the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.”82 Interpreting this amendment, the United States Supreme Court has observed that the liberty guaranteed by the Due Process Clause is not restricted to a fixed set of specifically enumerated rights, but extends along a continuum which includes a freedom from all arbitrary impositions or purposeless restraints. 83 While the freedom from physical restraint and improper criminal prosecution are conspicuously positioned atop this continuum, the liberty of civil defense is less prominently though no less firmly embedded within the vast expanse of its protective domain.

The inconspicuousness of this defensive right is enhanced by its complexity and diversity. Civil litigation is initiated and directed by ordinary citizens, yet it is not exclusively private.

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Because it is hosted and facilitated by the judicial system, it also is a type of state action. Still, a civil action does not pose the same dangers as a state-run criminal prosecution. Because civil litigation does not directly threaten life or limb, its liberty-limiting effect is relatively less substantial. Thus, despite the state’s involvement, a tort suit is not necessarily susceptible to the strictures of due process.

It earns that vulnerability only if it imposes a harm worthy of constitutional attention. Given the prodigiousness of the state’s authority, virtually any abuse of state power—including the misadministration of the civil justice system—could have potentially far-reaching effects. As a result, the Due Process Clause sets a conspicuously low tolerance level for state-sponsored harms, prohibiting any “significant” deprivation of life, liberty, or property.84 While such encroachments generally must be preceded by notice and a hearing, due process varies its requirements with the severity of the potential infringement. 85 Thus, devastating losses require highly formal and rigorous proceedings, while minor infringements warrant less formality and a lower standard of review.86 But even for the least significant invasions, this initial right to be heard never entirely subsides. So long as the harm is not trivial, some sort of predeprivation process is due the foreseeable victim.87

According to Professor John Goldberg, this due process requirement explains the very existence of the tort system, which provides victims a means to redress private wrongs when the state otherwise denies them the right to help themselves.88 But as the Supreme Court has come to recognize, due process also secures the right to civil defense, at least in certain cases. Most conspicuously, the Court has held that standardless, inconsistent, and overbroad punitive damage awards violate defendants’ right to due process.89 In these situations, the defendant lacks an adequate means of civil defense because the threat of liability is either unclear or excessive. To address these concerns, the Supreme Court now requires plaintiffs to present three forms of proof: that the defendant’s behavior was reprehensible, that the punitive claim is proportional

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to the claim for compensatory damages, and that other civil and criminal sanctions do not obviate the need for punishment.90 If the plaintiff establishes these requirements, the defendant receives adequate notice of a demonstrably reasonable rebuke. Conversely, if the plaintiff fails to make the necessary showing, her retributive aggression is considered arbitrary and unjustified, and the defendant is entitled to reduce the punitive claim or preempt it entirely.

Though the Court’s analysis is specific to punitive damage claims, the due process issues it addresses are conceptually unbounded. In essence, any action, theory, or doctrine may be found constitutionally suspect if it imposes an undue burden or springs an unfair surprise. 91 According to Professor Mark Geistfeld, such problems currently afflict many well-established features of the tort system. In negligence cases, Geistfeld argues that open-ended multifactor duty analyses,92 as well as vague instructions on pain and suffering damages93 and the standard of reasonable care,94 all tend to give too little guidance on important, liberty-restricting judgments and too much discretion to the decisionmakers who render them. Geistfeld finds similar deficiencies in strict liability actions for abnormally dangerous activities. Because the designation of an abnormally dangerous activity depends upon a lengthy list of unweighted factors, a defendant facing such a claim cannot reasonably predict when her financial freedom will be placed at risk or what she must do to defend it.95

Rights Against Pretrial Deprivations

But even these ostensibly radical claims are actually just the tip

of the iceberg. Due process polices all state proceedings at all times, not a select few every now and then. Thus, it governs the entire litigation experience—from the moment the state accepts a legal action until the action’s final disposition and everything in between. Presumably, this includes the filing of the lawsuit itself. Since every legal action employs state authority to coerce the

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defendant’s participation and compliance, each case always diminishes her liberty to some significant extent. Consequently, before a case may go forward, the protagonist must provide some preliminary justification for this inescapable infringement.

That justification appears most clearly in actions seeking injunctions. Here, the plaintiff urges the state to preempt or compel the defendant’s conduct. In the case of preliminary injunctions in particular, 96 the proposed coercion occurs prior to a final determination of liability, and often at the very beginning of litigation. Given the heightened vulnerability of the defendant’s liberty interests at this early stage of the proceedings, courts uniformly acknowledge that “a preliminary injunction is a drastic and extraordinary remedy that is not to be routinely granted.”97

To curb this threat, courts regularly accord defendants the traditional trappings of due process. Thus, when a motion for a preliminary injunction is filed, the defendant is entitled to reasonable notice of the motion, 98 and unless extraordinary circumstances prevail, a timely hearing to contest it.99 At the motion hearing, due process further shapes the proceedings. In assessing the motion, the court must weigh various factors, including “(1) the moving party's likelihood of success on the merits; (2) irreparable harm to the moving party if the preliminary injunction is improperly denied; (3) irreparable harm to the non-moving party if the preliminary injunction is improperly granted; and (4) the “public interest.”100 Although the movant bears the burden of proof on these factors, the rigor of the burden remains in doubt. Some jurisdictions impose a heightened burden of proof where the injunction would disturb the status quo, requiring the movant to “show that on balance, the four factors weigh heavily and compellingly in his favor” and “establish “a substantial likelihood that it will succeed on the merits.”101 Other courts employ a sliding scale approach in all situations, adjusting the requisite degree of likely success depending on the expected severity of the plaintiff’s harm.102 Yet between these approaches two things are abundantly clear. Both see the potential for abuse in

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these proceedings; thus both seek an assurance of legitimacy in some showing of probable cause.103

While due process closely regulates preliminary injunctions, it is not limited to such equitable actions. It also applies to actions at law, particularly those seeking pretrial deprivations of property. Replevin actions provide an apt example. In a replevin action, the plaintiff sues to recover property she claims was wrongfully taken or withheld by the defendant.104 Often, the plaintiff seeks to obtain possession of the disputed item at the outset of litigation. Until recently, some jurisdictions permitted the taking if the plaintiff merely filed a written petition alleging her entitlement to the goods, posted a monetary bond, and opened herself up to possible liability for damages.105 Though she could be required to justify her action in a post-deprivation hearing, the plaintiff did not have to provide the defendant notice or an opportunity to be heard before the taking occurred. 106

In the 1972 case of Fuentes v. Shevin,107 however, the United States Supreme Court declared these measures unconstitutional, specifically finding them violative of the Fourteenth Amendment’s Due Process Clause. 108 There, consumers in Florida and Pennsylvania purchased ordinary appliances and housewares under conditional sales contracts. When the consumers missed payments, the retailers filed replevin actions to repossess these goods. In accordance with applicable state law, the sheriffs in each case seized the items without notice to the consumers.109 The consumers filed actions challenging the constitutionality of their respective state’s prejudgment replevin procedures. While generally affirming the states’ power to seize goods on behalf of aggrieved creditors, a majority of the Court condemned the laws because they denied consumers “the right to a prior opportunity to be heard before [their] chattels are taken.”110

In support of its decision, the Fuentes Court penned a veritable manifesto of civil due process. According to the Court, “[t]he constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of decisionmaking when it acts to deprive a person of his possessions.”111 Its purpose is not just to

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ensure abstract fair play to the individual, but also to “protect his use and possession of property from arbitrary encroachment—to minimize substantively unfair or mistaken deprivations of property.”112 While all state action runs this risk, the danger of wrongful takings is “especially great when the State seizes goods simply upon the application of and for the benefit of a private party,”113 as is the case in replevin actions.

Such infringements are not constitutionally excusable simply because they involve intangible or nonessential liberty interests. As noted above, due process protects any “significant” interest, not just the basic necessities of life.114 In deciding which interests are significant, courts may not impose their own subjective standards of importance.115 Instead, their single mission is to determine whether the interest in question is “not de minimis.”116 Assuming it passes this test, the property’s protected status is not removed because the item is only partially or conditionally owned or its possession is threatened for only a short period of time.117 If the interest at stake is nontrivial, due process generally requires some prior process of adjudication.118

Indeed, the preliminary hearing requirement applies regardless of the other protections traditionally offered in replevin actions. Filing a complaint may provide a written record of the grounds for the action, but this alone is procedurally insufficient. As the Supreme Court earlier had noted, “written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decision maker appears to regard as important.”119 This flexibility is particularly critical when the matter involves complicated questions of fault, as is true in tort cases generally and in replevin actions in particular. Since such issues are “inherently subject to factual determination and adversarial input,”120 due process requires more than bald allegations in a formal document. It requires an opportunity to confront and cross-examine adverse witnesses.121

Permitting such proceedings after the deprivation does not remedy their prior omission. Nor is it enough that the defendant later may recover damages for the loss of her goods. “[N]o later

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hearing and no damage award can undo the fact that the arbitrary taking that was subject to the right of procedural due process has already occurred.” 122 Because the Supreme Court “has not…embraced the general proposition that a wrong may be done if it can be undone,”123 the defendant must be granted a hearing “at a time when the deprivation can still be prevented.”124

One could argue that the bond requirement already provides an adequate check against bad claims. But, as the Fuentes majority opined, it is “hardly a substitute for a prior hearing, for [it] test[s] no more than the strength of the applicant’s own belief in his rights.”125 “Since [the plaintiff’s] private gain is at stake,” the Court observed, “the danger is all too great that his confidence in his cause will be misplaced.”126 This overconfidence, in turn, strengthens his resolve to risk the costs of litigation.127 To correct the “self-interested fallibility” of such litigants, due process forces courts to take an active role in the screening process, not only by examining the support for the plaintiff’s position, but also by hearing arguments from both sides before taking sides between them.128

In fact, the participation of a neutral state official is a core requirement of due process. Replevin statutes, like common law torts more generally, “abdicate effective state control over state power” by accepting and facilitating private actions without imposing any preliminary guarantee of their merit.129 “Private parties, serving their own private advantage, may unilaterally invoke state power to replevy goods from another.”130 Ordinarily, “[n]o state official participates in the decision to seek a writ; no state official reviews the basis for the claim to repossession; and no state official evaluates the need for immediate seizure.”131 Indeed, “[t]here is not even a requirement that the plaintiff provide any information to the court on these matters.”132 Thus, when the writ is issued and the property is recovered, “[t]he State acts largely in the dark.”133

Forcing plaintiffs to present their claims to a judge in a pretrial hearing goes a long way toward alleviating these concerns.134 Besides restoring the state’s control over the repossession process,

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such judicial review creates an expert and objective gatekeeper to dismiss and discourage specious claims. But even this safeguard cannot guarantee due process. To fully protect the defendant’s interests, the judge must employ an appropriately strict standard for granting replevin. In the Supreme Court’s words, the hearing must provide a “real test” of the plaintiff’s claim.135 Such a test requires more than a mere possibility of success at trial. Instead, it must establish “the validity, or at least the probable validity, of the underlying claim against the alleged debtor before he can be deprived of his property.”136 In short, due process requires prior proof of probable cause.

Though a costly and time-consuming standard to litigate, probable cause cannot be compromised by purely economic concerns. According to the high Court, “[p]rocedural due process is not intended to promote efficiency or accommodate all possible interests; it is intended to protect the particular interests of the person whose possessions are about to be taken.”137 Thus, it is irrelevant that a prior hearing imposes “costs in time, effort, and expense” or that “it is often more efficient to dispense with the opportunity for such a hearing.”138 “[T]hese rather ordinary costs cannot outweigh the constitutional right” to due process.139 In fact, ‘“one fairly might say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.’”140

Proving Probable Cause for Civil Recourse

Considered individually, the jurisprudence of injunctions and

replevin actions may seem unique and distinct. But taken together, one begins to see an important common theme. Even at the earliest stages of litigation—before the first interrogatory is filed or a single deposition is taken—any action by the plaintiff that threatens imminent harm to the defendant’s vested interests must

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be preceded by notice and an opportunity to be heard. While these actions contemplate encroachments outside the litigation process, their thematic lesson applies equally to the process itself.

The simple truth is, every civil action causes significant harm to the party sued. A lawsuit, by its very nature, forces the defendant to submit to the machinery of the state, endure the rigors of litigation, and fear the loss of her liberty. As Justice Stevens noted in Albright, this experience can have devastating financial, emotional, and social effects even if the process otherwise ends favorably. Thus, the state must take some precautions to minimize the damage. Surprisingly, however, few safeguards exist. Today, litigation can be commenced by anyone who is willing to recount facts, swear an oath, file papers, and risk sanctions by the court or a lawsuit by her adversary for wrongful use of civil proceedings.

But as the preceding discussion suggests, and as I will demonstrate more fully in chapter 8, 141 these rather meager measures seem far from constitutionally sufficient. While written pleadings generally reveal the basis for the lawsuit, they do not require any preliminary proof, are not critically examined or evaluated by the state, and do not permit any adversarial input short of a blanket denial of facts or the general assertion of affirmative defenses. Moreover, unlike the bond-posting replevin plaintiff, the ordinary civil litigant takes almost no risk by filing suit since she pays nothing if she loses her case. Of course, the defendant may seek sanctions for frivolous filings or countersue for abuse of process, but as we shall see in chapter 5,142 these ploys are seldom invoked and rarely successful. Even where the defendant does prevail, her corrective remedy can no more restore the loss of her due process rights than a subsequent replevin trial can negate the earlier deprivation of one’s property.

Thus, whether the plaintiff seeks specific pretrial relief, or merely seeks to use the pretrial process to obtain a later compensatory judgment, due process seems to require some type of prior hearing. While that hearing may take many forms, it can have only one objective: to determine whether the plaintiff’s right to recourse overrides the defendant’s prospective harm. In

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injunction and replevin actions, this determination is firmly based on probable cause. But under the Supreme Court’s broad rhetoric, the same standard might apply to any act of legal aggression. Because litigation itself creates a nontrivial infringement of liberty, the state may require all civil plaintiffs to present preliminary proof substantiating their claims. When that standard is met, both the claim and the process for litigating it can be presumed necessary and just. But when the plaintiff offers only unsubstantiated accusations, her lawsuit looks more like an intimidation tactic and a wrongful violation of her adversary’s right to due process. NOTES 1 See ALAN CALNAN, A REVISIONIST HISTORY OF TORT LAW: FROM HOLMESIAN REALISM TO NEOCLASSICAL RATIONALISM 83 (2005). From the first to the ninth century A.D., England was invaded by numerous foreign tribes, including Romans, Angles, Saxons and various Scandinavian marauders. See id. 2 By the seventh century, England was home to at least ten different kingdoms. See id. 3 See id. (“The king and his council occasionally produced legal codes, but these codes were intended more as codifications of established custom than promulgations of new law.”). 4 See id. at 90-93, 144 (discussing the quasi-criminal law-codes of the Anglo-Saxon kings and the royal responsibility to maintain law and order); see also W.L. WARREN, HENRY II 335-36 (1995) (noting that kings “issued peremptory orders for the righting of wrongs, often with as little regard of the formalities of law as those who had committed the wrong”). 5 See id. at 86. 6 See generally William Ian Miller, Choosing the Avenger: Some Aspects of the Bloodfeud in Medieval Iceland and England, 1 LAW & HIST. REV. 159 (1983) (describing blood-feud traditions in England and Iceland); see also Wex S. Malone, Ruminations on

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the Role of Fault in the History of the Common Law of Torts, 31 LA. L. REV. 1, 1-5 (1970) (discussing the Anglo-Saxon blood feud). 7 See CALNAN, supra note 1, at 91, 97, 236 (explaining this practice). 8 See supra pp. __-__ and accompanying notes; see also CALNAN, supra note 1, at 238 (discussing distraint). 9 See WARREN, supra note 4, at 335-36 (explaining this custom); CALNAN, supra note 1, at 195-96 (discussing the development of the early land repossession action of novel disseisin). 10 WARREN, supra note 4, at 336. 11 See CALNAN, supra note 1, at 87 (describing the development of the royal judiciary). 12 See John C.P. Goldberg, Wrongs Without Recourse: A Comment on Jason Solomon’s Judging Plaintiffs, 61 VAND. L. REV. EN BANC 9, 14 (2008) (describing tort law as “a scheme by which government gives victims the chance to harness the procedures and powers of the legal system as a way of getting back at their wrongdoers.”). 13 See WARREN, supra note 4, at 323-24 (illustrating circumstances where kings issued writs to ensure that plaintiffs received justice from lower courts). 14 See id. at 323. 15 See id. 16 See id. at 334. 17 See id. 18 See id. at 324. 19 See WARREN, supra note 4, at 325-29; CALNAN, supra note 1, at 60-61. 20 See WARREN, supra note 4, at 334. 21 See id. at 325. 22 See id.; Jack K. Weber, The Birth of Probable Cause, 11 ANGLO-AMERICAN L. REV. 155, 155-58 (1982) (discussing the prevalence of false arrest claims against sheriffs). 23 See CALNAN, supra note 1, at 87. 24 See supra pp. __-__ and accompanying notes.

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25 See David J. Seipp, The Distinction Between Crime and Tort in the Early Common Law, 76 B.U.L. REV. 59, 69 (1996) (describing the defining characteristics of the writ of trespass); see also THEODORE F.T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 366 (5th ed. 1956) (noting the security requirement for writs under the early common law); Note, Groundless Litigation and the Malicious Prosecution Debate: A Historical Analysis, 88 YALE L.J. 1218, 1221 (1979) (discussing the surety requirement in the Anglo-Saxon period). 26 See CALNAN, supra note 1, at 201 (noting that county courts handled many tort-like claims involving conduct less serious than trespass); PLUCKNETT, supra note 25, at 461 (noting the crown’s desire “to keep actions not involving title to land in local courts.”); 27 See Wex S. Malone, Ruminations on the Role of Fault in the History of the Common Law of Torts, 31 LA. L. REV. 1, 16-19, 27-31 (1970) (discussing accidents caused by firearms and road traffic); see also CALNAN, supra note 1, at 241 (generally describing these developments in the late medieval period); Thomas C. Grey, Accidental Torts, 54 VAND. L. REV. 1225, 1257-58 (2001) (discussing the rise of accidental injuries and negligence litigation in the early industrial era); John Fabian Witt, Toward a New History of American Accident Law: Classical Tort Law and the Growth of the First-Party Insurance Movement, 114 HARV. L. REV. 690, 713-22, 758-66 (2001) (same). 28 See CALNAN, supra note 1, at 201-03. 29 See id. at 202-03 (discussing illustrative cases). 30 See id. at 203-05. 31 See id. at 197. 32 See id. at 204. 33 See id. at 207, 233 (discussing these and other public, customary responsibilities). 34 See id. at 204-05. 35 See id. 36 See id. at 101-02, 201.

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37 See PETER LINEBAUGH, THE MAGNA CARTA MANIFESTO: LIBERTIES AND COMMONS FOR ALL 289 (2008). The charter was actually a list of grievances written by the barons and presented to King John for approval. See R.H. Helmholz, Magna Carta and the Ius Commune, 66 U. CHI. L. REV. 297, 298 (1999). 38 MEDIEVAL SOURCEBOOK: THE TEXT OF MAGNA CARTA cl. 4, http://www.fordham.edu/halsall/source/magnacarta.asp. 39 Id. cl. 7. 40 Id. cl. 34. Specifically, that clause provided that “[t]he writ called precipe shall not in future be issued to anyone in respect of any holding of land, if a free man could thereby be deprived of the right of trial in his own lord's court.” Id. (emphasis in original). 41 Id. cl. 12. Under clause 12, “[n]o ‘scutage’ or ‘aid’ may be levied in our kingdom without its general consent, unless it is for the ransom of our person, to make our eldest son a knight, and (once) to marry our eldest daughter” and even then, “only a reasonable ‘aid’ may be levied.” Id. 42 Id. cl. 13. According to Clause 13, residents in London and “all other cities, boroughs, towns, and ports shall enjoy” their traditional customs and liberties. Id. 43 Id. cls. 17 & 18. Clause 17 stated that “[o]rdinary lawsuits shall not follow the royal court around, but shall be held in a fixed place.” Id. cl. 17. Clause 18 provided that “[i]nquests of novel disseisin, mort d'ancestor, and darrein presentment shall be taken only in their proper county court” and be heard by “two justices…four times a year, and these justices, with four knights of the county elected by the county itself, shall hold the assizes in the county court, on the day and in the place where the court meets.” Id. (emphasis in original). 44 Id. cl. 36. Under this clause, “[i]n future nothing shall be paid or accepted for the issue of a writ of inquisition of life or limbs;” rather, “[i]t shall be given gratis, and not refused.” Id. 45 Id. cl. 45. Clause 45 specified that “[w]e will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well.” Id.

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46 Id. cl. 38. 47 Id. cls. 20 & 21. Clause 20 specifically provided that “For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood” and “[n]one of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood.” Id. cl. 20. Clause 21 added that “[e]arls and barons shall be fined only by their equals, and in proportion to the gravity of their offence.” Id. cl. 21. 48 Id. cl. 39. 49 Id. cl. 40. 50 Clauses 24, 28, 29, 30, 31, and 38 all placed restrictions on the conduct of sheriffs, constables, bailiffs, and/or coroners. See id. cls. 24, 28, 29, 30, 31, 38. 51 See supra pp. __-__ and accompanying notes. 52 See supra pp. __-__ and accompanying notes. 53 See Seipp, supra note 25, at 66-67. These fines, and medieval trial processes more generally, were discussed in chapter 2. See supra pp. __-__ and accompanying notes. 54 See Seipp, supra note 25, at 66-67. The imprisonment of defendants was addressed previously in chapter 2. See supra pp. __-__ and accompanying notes. 55 See WILLIAM S. MCKECHNIE, MAGNA CARTA—A COMMENTARY ON THE GREAT CHARTER OF KING JOHN 375–95 (2d rev. ed. 1914) (citing and discussing clause 39). Chapter 29 of Henry III’s Third Reissue of the charter in 1225 reworded its language as follows: “No free man shall be taken or imprisoned or deprived of his freehold or his liberties or free customs, or outlawed or exiled, or in any manner destroyed, nor shall we come upon him or send against him, except by a legal judgment of his peers or by the law of the land.” Id. at 504; see JAMES C. HOLT, MAGNA CARTA 226–29 (1st ed. 1965). This reissue, which became the standard text thereafter, added an additional protection in clause 40: “To no one will we sell, to no one will we deny or delay right or justice.” Id.

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56 1 ENCYCLOPEDIA OF AMERICAN CIVIL LIBERTIES 456 (Paul Finkelman ed., 2006) (emphasis added). 57 Hurtado v. People of State of Cal., 110 U.S. 516, 523 (1884) (discussing Lord Coke’s analysis of due process). 58 Id. at 527. 59 See BERNARD SCHWARTZ, THE GREAT RIGHTS OF MANKIND: A HISTORY OF THE AMERICAN BILL OF RIGHTS 152-53 (1992). 60 See supra pp __-__ and accompanying notes. 61 Id. at 162-65. 62 See Bair v. Shoultz, 7 N.W.2d 904, 905 (Iowa 1943) (“criminal prosecutions are started by information or indictment”); see also State v. Williams, 313 N.E.2d 859, 864 (Ohio 1974) (Brown, J., dissenting) (noting that a criminal prosecution starts with an arrest). Under a broader interpretation, prosecution might commence when law enforcement personnel present evidence to a judicial officer to obtain a warrant to investigate or detain a suspect. See WELSH S. WHITE & JAMES J. TOMKOVICZ, CRIMINAL PROCEDURE: CONSTITUTIONAL CONSTRAINTS UPON INVESTIGATION AND PROOF ix-x (6th ed. 2008) (taking this view). 63 See WHITE & TOMKOVICZ, supra note 62, at x-xi (noting the use of these tactics to charge the defendant). 64 See id. at x (describing this proceeding). 65 See JOSHUA DRESSLER & GEORGE C. THOMAS III, CRIMINAL PROCEDURE: PROSECUTING CRIME, 786, 788-89 (4th ed. 2010) (describing the role of bail). 66 See WHITE & TOMKOVICZ, supra note 62, at ix-xi (discussing the preliminary hearing). 67 See Albright v. Oliver, 510 U.S. 266, 274 (1994) (noting that “[t]he Framers considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to address it”). 68 See id. at 271 n.4 (“Most of the lower [federal] courts recognize some form of malicious prosecution action under § 1983.”). Section 1983 of the Civil Rights Act of 1871 imposes liability for any deprivation of civil rights under color of state law. 42 U.S.C. § 1983 (West 2012).

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69 See id. at. 290 (Souter, J., concurring) (citing Hale v. Fish, 899 F.2d 390, 403-404 (5th Cir. La. 1990)). 70 The defendant may be subject to restrictive conditions even after posting bail. These restrictions may include, among other things, “home detention enforced by security guards, twenty-four-hour video monitoring, screening of visitors, limitations on communications, and the requirement that the defendants or their families bear the considerable expense of these conditions.” See Jonathan Zweig, Extraordinary Conditions of Release Under the Bail Reform Act, 47 HARV. J. ON LEGIS. 555, 555 (2010) (describing the conditions placed on the release of prominent white-collar criminals Bernard Madoff and Marc Dreier). 71 510 U.S. 266. 72 See 510 U.S. at 275 (opinion by Chief Justice Rehnquist, joined by Justices O’Connor, Scalia and Ginsburg). 73 See id. at 280-81 (Ginsburg, J., concurring) (stating that “Albright’s Fourth Amendment claim, asserted within the requisite period after dismissal of the criminal action, in my judgment was neither substantively deficient nor inevitably time barred” and that “the Fourth Amendment…proscribes the police misconduct Albright alleges.”); id. at 291 & n.3 (Souter, J., concurring) (conceding that “the arbitrary filing of criminal charges may work substantial harm on liberty” but noting that Albright had not properly raised that issue on appeal); id. at 309 n.26 (Stevens, J., dissenting; joined by Blackmun, J.) (“The petitioner was deprived of a constitutionally protected liberty interest at the moment that he was formally charged with a crime;” “it…perpetuated the violation of his right to be free from prosecution absent probable cause.”) 74 Id. at 271 (“We hold that it is the Fourth Amendment, and not substantive due process, under which petitioner Albright’s claim must be judged.”). 75 Id. at 275. 76 Id. at 278-279 (Ginsburg, J., conurring). 77 Id. at 286 (Kennedy, J., concurring; joined by Thomas, J.). 78 Id. at 291 (Souter, J., concurring).

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79 Id. at 308 (Stevens, J., dissenting; joined by Blackmun, J.). 80 Id. at 307. 81 Id. at 296. 82 U.S. CONST. amend. XIV, § 1. 83 See Poe v. Ullman, 367 U.S. 497, 543 (1961) ("This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures... It is a rational continuum which...includes a freedom from all substantial arbitrary impositions and purposeless restraints..."). 84 See Niki Kuckes, Civil Due Process, Criminal Due Process, 25 YALE L. & POL’Y REV. 1, 12 (2006). 85 Id. 86 Id. at 13. 87 Id. 88 See John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 YALE L.J. 524 (2005) (arguing that due process requires the creation of a law to redress civil wrongs). 89 See Philip Morris USA v. Williams, 549 U.S. 346, 349 (2007) (holding that a punitive damage award that punishes “the defendant for harming persons who are not before the court (e.g., victims whom the parties do not represent)” amounts “to a taking of ‘property’ from the defendant without due process.”); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 417 (2003) (quoting BMW of N. Am. v. Gore, 517 U.S. 559, 574 (1996)) (stating that the Constitution guarantees “fair notice . . . of the conduct that will subject [one] to punishment.”); BMW, 517 U.S. at 562 (holding that “The Due Process Clause of the Fourteenth Amendment prohibits a State from imposing a "'grossly excessive'" punishment on a tortfeasor.”); see generally Thomas H. Dupree Jr., Punitive Damages and the Constitution, 70 LA. L. REV. 421 (2010) (discussing the due process constraints placed on punitive damages by the Supreme Court).

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90 See BMW, 517 U.S. at 574-575. 91 Mark Geistfeld, Constitutional Tort Reform, 38 LOY. L.A. L. REV. 1093, 1094 (2005). 92 Id. at 1109-1110. 93 Id. at 1108. 94 Id. at 1110. 95 Id. 96 A preliminary injunction is a temporary equitable remedy—issued before a trial on the merits—which seeks to protect the movant from imminent, irreparable harm and preserve the court’s power to fully adjudicate the dispute. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-12 (1982); 11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL (2d ed. 1990). 97 Intel Corp. v. ULSI System Technology, Inc., 995 F.2d 1566, 1568 (Fed. Cir. 1993); see Travel Tags, Inc. v. UV Color, Inc., 690 F.Supp.2d 785, 797 (D. Minn. 2010) (endorsing this principle); Dible v. City of Lafayette, 713 N.E.2d 269, 272 (Ind. 1999) (same). 98 FED. R. CIV. PROC. 65(1) (“The court may issue a preliminary injunction only on notice to the adverse party.”). 99 In federal court, the right to a hearing is implied by Rule 65 (b) of the Federal Rules of Civil Procedure, which states that “before or after beginning the hearing on a motion for a preliminary injunction, the court may advance the trial on the merits and consolidate it with the hearing.” FED. R. CIV. PROC. 65(2); see Marshall Durbin Farms, Inc. v. National Farmers Org., Inc., 446 F.2d 353, 356 (5th Cir. 1971) (“This rule pertaining to preliminary injunctions requires notice and implies a hearing.”); see also Scott & Fetzer Co. v. McCarty, 450 F. Supp. 274, 277 n.4 (N.D. Ohio 1977)(noting that defendants generally are entitled to a hearing before a preliminary injunction is issued, though the district court has discretion to forego such a proceeding where the undisputed facts, submitted affidavits, or other factors render it unnecessary). 100 See Thomas R. Lee, Preliminary Injunctions and the Status

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Quo, 58 WASH. & LEE L. REV. 109, 111 (2001) (listing these factors). 101 SCFC ILC, Inc. v. VISA USA, Inc., 936 F.2d 1096, 1099, 1101 (10th Cir. 1991); see also Lee, supra note 100, at 113, 115-16 (discussing this approach). 102 See Times Mirror Magazines, Inc. v. Las Vegas Sports News, L.L.C., 212 F.3d 157, 160 (3d Cir. 2000) (requiring a “delicate balancing of the probabilities of ultimate success at final hearing with the consequences of immediate irreparable injury which could possibly flow from the denial of preliminary relief”); Doe v. Sundquist, 106 F.3d 702, 707 (6th Cir. 1997) (indicating that “the degree of likelihood of success that need be shown to support a preliminary injunction varies inversely with the degree of injury the plaintiff might suffer”); Cityfed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995) (explaining that a preliminary injunction “may be justified, for example, where there is a particularly strong likelihood of success on the merits even if there is a relatively slight showing of irreparable injury”). 103 See San Francisco Newspaper Printing Co. v. Superior Court, 16 Cal. Rptr. 462, 464 (Cal Ct. App. 1985) (“[A]n injunction pendente lite must not issue unless it is reasonably probable that the moving party will prevail on the merits.”) 104 See DAN B. DOBBS, THE LAW OF TORTS 153 (2000) (discussing replevin actions). 105 See Fuentes v. Shevin, 407 U.S. 67, 83 (1972). 106 See id. at 69-70, 80 (describing replevin procedures in Florida and Pennsylvania). 107 407 U.S. 67. 108 Id. at 96-97. 109 Id. at 70-72. 110 Id. at 96. 111 Id. at 80. 112 Id. at 80-81. 113 Id. at 81.

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114 Id. at 70, 87, 89 (finding, for example, that a stove and stereo costing about $500 represent significant property interests). 115 See id. at 89. 116 Id. at 90 fn 21. 117 See id. at 84-87. 118 See id. at 96-97. 119 Goldberg v. Kelly, 397 U.S. 254, 269 (1970). 120 See Mitchell v. W.T. Grant Co., 416 U.S, 600, 617 (1974). 121 See Goldberg, 397 U.S. at 269. 122 Fuentes, 407 U.S. at 82. 123 Id. at 82. 124 Id. at 81. 125 Id. at 83. 126 Id. 127 See id. 128 Id. 129 Id. at 93. 130 Id. 131 Id. 132 Id. 133 Id. 134 See Mitchell, 416 U.S. at 605 (upholding a Louisiana property sequestration statute because it required plaintiffs seeking such a writ to obtain preapproval by a judge). 135 Fuentes, 407 U.S. at 97. 136 Id. 137 Id. at 92 n.22. 138 Id. 139 Id. 140 Id. (quoting Stanley v. Illinois, 405 U.S. 645, 656 (1972)). 141 See infra pp. __-__ and accompanying notes. 142 See infra pp. __-__ and accompanying notes.