Jonathan S. Keim (Georgetown University Law Center) has posted Incredible Credibility: Administrative Detention of Food Articles, Probable Cause, and the Original Meaning of the Fourth Amendment (Georgetown Journal of Law & Public Policy, Vol. 6, No. 1, 2008) on SSRN. Here is the abstract:
Under 2002 revisions to the Food, Drug and Cosmetic Act, federal authorities have the power to administratively detain a food article in interstate commerce when a food inspector has "credible evidence or information" that the article poses a risk. Though the detention is only temporary, and provides a method to take immediate action without a full judicial hearing, this evidentiary standard is apparently quite slim. This article argues that the original meaning of the Fourth Amendment imposes a probable cause requirement before the government can seize property, even for a short time. Because the phrase "credible evidence or information" is lower than probable cause, the administrative detention evidentiary standard should be construed as probable cause, thus protecting property from underjustified government intrusion.
Posted at 12:37 PM