Interesting update from Fenster on his previous post on the subject, which I had reblogged here.
When circumstances change, it seems only reasonable that laws ought to change, too, in accordance with the changed circumstances. I have argued thus in specific regards, such as alimony.
It is especially heinous, IMO, when old laws had more limited contexts within which they made sense, but no longer do in modern contexts, yet not only remain in place, but become expanded in scope; e.g. as Fenster noted Thomas observing that taking of criminal proceeds (or what is considered equivalent), is a modern invention. In such cases, the aim is clearly no longer justice but self-serving for the benefit of state functionaries; for a corrupt system. And that is appalling.
Fenster is highly suspicious of the practice of civil asset forfeiture, and wrote of the issue here.
You may know that the law often allows police or other authorities to keep the ill-gotten gains from a criminal transaction. That’s bad enough as far as creating a financial incentive. But the moral hazard is serious enough that police often take assets when no criminal action has been shown to have occurred, or if the owner of the asset was not aware of the crime. Spending sprees are known to result as well.
As I read more about this practice I came across the legal distinction that supports forfeiture. Typically, when the state proceeds against a defendant in a criminal law setting it does do “in personam“–that is, against the actual person. It is this proceeding against an actual person that in turn gives rise to the full…
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