I. Reading notes 1.28.

2011
a. Right to Be Heard
b. Connecticut v. Doehr
i. CT attached a defendant’s property with no noticed and no hearing, merely
because a plaintiff filed an affidavit with his cause of action.
1. Suit did not involve defendant’s real estate nor did the plaintiff have any
pre-existing interest in his property.
2. He received notice of the attachment only after it occurred, and had yet
to be served, and he had the right to a hearing.
ii. Courts have upheld attachments and garnishment on liens before.
1. The provision here included an immediate post-deprivation hearing
along with the option of damages requirement that a judge rather than
a clerk determine the clear showing of entitlement to the writ of
attachment, and necessity for a detailed affidavit, and an emphasis on
the lien-holder’s interest in preventing waste or alienation of the
encumbered property.
iii. Government Deprivation Test –
1. Risk of erroneous deprivation, with probable value if any, of
additional/substitute safeguards
2. Interest of private party affected by official action.
3. Government’s interest, including function involved, and
fiscal/administrative burdens resulting from additional/substitution
procedures.
iv. Prejudgment statutes ordinarily apply to disputes between private parties
rather than between an individual and the government.
v. Attachment effects
1. Attachment clouds title, impairs ability to sell, taints credit rating, and
ruins possibility of attaining loans, can place the property into technical
default when there’s an insecurity clause.
2. Even partial/temporary attachments can have significant harm.
3. Risk of erroneous deprivation was made on very little substantive
procedural claim, and ‘probable cause’ in this circumstance is obscure
and without merit.
a. Subjective good belief by the plaintiff is insufficient for this
analysis.
4. Potential for unwarranted attachment is high and the justification is
scant; the judge is in little position to make a realistic assessment
concerning the likelihood of an action’s success based upon the rather
pitiful submissions.
a. This submission only gives notice by the plaintiff, and so the
defendant is already attacked and conceivably injured without
any chance to provide a defense.
 5. Interests by the plaintiff are minimal – no probability of liquidation of
property by the defendant and he simply wanted to ensure the
availability of assets for a potential judgment.
6. The government has no interest because the substantive interests of
the state cannot be any more significant than the interests of the
plaintiff himself.
7. Prejudgment attachment as a remedy is virtually unknown at common
law, and generally speaking it has serious limitations, only when the
defendant had taken or threatened to take action that would place the
satisfaction of the plaintiff’s potential award in serious jeopardy.
a. Typically, these statutes also require the posting of a bond by
the plaintiff.
8. Any given extraordinary exigency does not protect an attachment
statute from constitutional attack, but they do help alleviate the issues
that are present in this circumstance.
c. Bonds
i. Without a bond at the time of attachment the danger that these property rights
may be wrongfully deprived remains unacceptably high even with safeguards
like exigency or hearing requirements.
ii. It is double security – attachment for plaintiff and bond for the defendant.
iii. Even a full hearing under a proper probable-cause standard would still taint the
title and have it impaired.
iv. The meaning of probable cause is vague and thus would probably be better
remedied with a bright line standard.
v. Court also picked up on the fact that attachment could serve as a capricious
device for threatening litigation.
vi. No appreciable interest against a bond requirement.
vii. The bond requirement does not excuse the need for other safeguards
altogether, it is simply required as a rule.
viii. Rehnquists’s Concurrence – the statute in the present case does not deprive the
defendant of the use or possession of the property and thus is not
unconstitutional in that regard.
1. Mechanic’s liens are allowed and do not cause deprivation.
2. This is the only method by which workmen/small businesses may have a
remedy against a defaulting defendant.
d. Notes
i. An interest in the property and a mechanic’s lien helped severely to alleviate the
problems in another case.
ii. Posner argues that the procedural system should encourage greater efficiency.
iii. Admiralty courts still uphold QIR attachment without a hearing.