Articles Tagged with R Tamara de Silva

IMG_1241-300x200Sentence Before Verdict- Civil Asset Forfeiture Considered

by R Tamara de Silva

January 26, 2017

 

Let the jury consider their verdict,’ the King said, for about the twentieth time that day.

`No, no!’ said the Queen. `Sentence first–verdict afterwards.’

`Stuff and nonsense!’ said Alice loudly. `The idea of having the sentence first!’

`Hold your tongue!’ said the Queen, turning purple.

`I won’t!’ said Alice.

`Off with her head!’ the Queen shouted at the top of her voice.

 

                                                      Alice’s Adventures in Wonderland by Lewis Carroll

 

Few things in the practice of law have struck me as more similar in practice to the Queen’s declaration in Alice in Wonderland than the often seemingly surreal practice of civil forfeiture. Not only when in instances that it goes awry but just even as a theory as it sits written into federal and state statutes -resting on the books yet so very much at odds even in written theory with the scant enumerated rights and protections that are our constitutional safeguards against tyranny. It was anticipated by some that the recent confirmation hearings of the new United States Attorney General would draw attention to the practice of civil forfeiture.  Mr. Sessions had previously defended the practice of civil forfeiture as it was used in Alabama in his tenure as a prosecutor there.

The practice of civil forfeiture provides that federal and state statutes allow the government to seize private property when that property is used in prohibited ways. Like so much in the law, the room for disaster lies in the application of what is subject to interpretation and by whom it is that is doing the interpreting.

Civil forfeiture originated in the laws of admiralty when ships carrying contraband were subject to seizure.  The cargo carried would be seized whether on port or on the high seas often of necessity outside of the presence of the ship’s owners who may have been in distant countries.  Forfeiture was later used in the area of border crossing during customs examinations starting in England in the 1700s and through the Act of Frauds.

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The Doctrine of Privacy in the Age of Big Data

by R Tamara de Silva

 

We all have an unthinking certitude about what privacy means.  We are reasonably sure that we retain this right to privacy when we go about our ordinary activities like buying groceries or using the Internet.

But it is not unreasonable to question what our right to privacy means in the digital world of Big Data.  It bears noting that this cursory discussion will not delve into the more complex issue of what the right of privacy actually is and from where it arises.  Case law typically considers the right to privacy when it comes to striking down laws related to the rubric of human sexuality-the familiar topics of abortion, marriage and contraception.  Aside from First Amendment protections and the right to be secure in your home, what is meant by privacy here for our purposes is the idea of what is left for so many of us to retain as our own.  Or stated alternatively, what we do not want to be shared-even when we seem so compelled to seemingly ‘over share’ so much else.

Privacy is a sphere into which the individual does not want the government, or anyone else for that matter, to reach.  Privacy in any case is practically better discussed in this colloquial and ‘common sense’ way than in the legal sense where one’s politics, ideas of judicial interpretation, and judicial activism do not need to be summoned.

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