The United States Supreme Court first adopted the legal fiction of the personification of an object for an in rem proceeding in the early 19th century. After summarizing the different definitions of a legal fiction, the author concludes that the civilian definition is the most appropriate, yet should only be applied in narrow circumstances to prevent encroaching upon constitutional freedoms through civil asset forfeiture devices. The author discusses the advantages of legal fictions in the law, but then recounts how excessive use can yield unjust results and possibly incorrect conclusions. Perusing the current usage of legislative, judicial, and historical legal fictions in American law, the article culminates in a discussion of the Civil Asset Forfeiture Reform Act, passed by Congress in 2000, which narrows the scope of civil forfeiture applicability.
Legal Fiction and Forfeiture: An Historical Analysis of the Civil Asset Forfeiture Reform Act,
Duq. L. Rev.
Available at: https://dsc.duq.edu/dlr/vol40/iss1/4