“But I Know It When I See It”: Natural Law and Formalism

“But I Know It When I See It”: Natural Law and Formalism

W. H. Bryson, “But I Know It When I See It”: Natural Law and Formalism, 50 U. Rich. L. Rev. Online 107 (2016) (reviewing R. H. Helmholz, Natural Law in Court: A History of Legal Theory in Practice (2015); David M. Rabban, Law’s History: American Legal Thought and the Transatlantic Turn to History (2013)).

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Book Review

“But I Know It When I See It”: Natural Law and Formalism

W. H. Bryson*

Natural Law in Court: A History of Legal Theory in Practice
By R. H. Helmholz. Harvard University Press, 2015. 260 pp. $45.00

Law’s History: American Legal Thought and the Transatlantic Turn to History
By David M. Rabban. Cambridge University Press, 2013. 582 pp. $33.99

+++Professor Helmholz writes with knowledge and authority on the use of natural law in the courts of law in early modern Europe, England, and the United States. This necessarily includes a discussion of the teaching of natural law to the students who would in due course practice in those courts and sit on those benches.[ref][1][/ref] It is apparent that natural law was not taught in the schools of law systematically, as it was in the schools of philosophy and theology. Rather, it was peripherally introduced at the beginning of a student’s legal education in order to anchor the law and the study thereof in the broader world.[2] This is logically necessary when the theoretical law is applied to the facts of the so called “real world.” The law may or may not be a metaphysical construct, but it certainly does concern itself with the world as a method—the preferred method—of conflict resolution.

+++Professor Helmholz shows convincingly that natural law ideas were in the backs of the minds of the legal professionals in the early modern period of Europe and the western hemisphere. Other sources of the law were more often resorted to, but that was because positive and municipal law were more explicit and better defined.

+++Professor Rabban focuses on legal education and legal thought in the late nineteenth century. He discusses, in particular, the legal accomplishments of the Harvard Law School under Dean C. C. Langdell and his immediate colleagues and followers.[3] These accomplishments were, in my own opinion, primarily in the arena of legal scholarship. The Harvard Law School professors wrote legal treatises that were useful not only to their students but more importantly to the Anglo-American legal profession in general.[4]

+++Professor Rabban’s careful and thorough study of these men and their work places them in the broader tradition of natural law. They were called formalists, but, it appears to me that formalism is simply the putting of the natural law into legal practice. Thus, natural law is the organizing principle underlying their legal treatises.

+++The burden of this book is to demonstrate that the nineteenth century formalists were not at all the tools of the contemporary industrialists. They most certainly did not champion the ideas of unbridled laissez faire capitalism that was the economic model at their time, although they were unfairly characterized as doing so by their successors, Dean Roscoe Pound and his followers.[5] It is, of course, human nature to push the older generation out of the way so that the younger generation can take their place. This is perhaps necessary if any progress is to be made. Challenging older ideas is a good thing if it is done honestly. But mindlessly to cast aside the tried and true is not a good thing. Not all change is progress. History supplies many unfortunate examples of major steps backward. Professor Rabban corrects the misperceptions by the so-called legal realists as to the positions of the legal formalists.

+++Justice Stewart, in the case of Jacobellis v. Ohio,[6] as to pornography, while he could not define it clearly, observed, “[b]ut I know it when I see it.” Perhaps it is not appropriate to speak of pornography and divine law in the same article, but this quotation does have the ring of truth to those who have the grace to believe in something without fully understanding it.

+++Both Professor Helmholz and Professor Rabban know what natural law and formalism are. However, neither scholar presumes to give an airtight definition. And this is appropriate. Professor Helmholz ends his book with a quotation from Thomas Aquinas, who, with humility, acknowledges his own imperfect understanding of natural law.[7]

+++Perhaps natural law is God’s law. If so, human beings cannot fully know it, since creatures cannot fully know their creator. I am neither a theologian nor a philosopher, nor will I attempt a definition of natural law. However, I will observe that those wiser than me have opposed natural law to the general law of nations and the municipal law of a specific nation. Thus natural law has been opposed to the positive law. This, however, is not to say they are always in conflict. Perhaps, in the ideal world, they coincide. We can let the philosophers argue about the “ought” and the “is.” We can let the legal realists carry the ideas of Jeremy Bentham about the positive law to extremes. We can let the theologians and the atheists argue over whether there is nothing outside of human existence. However, before Bentham, lawyers did not think that way. Before Bentham all lawyers believed that there was something above human being and experience, and this was and is natural law. It is something that defines the goodness of the positive law. Exactly what that is, I do not know. But I know it when I see it.

+++What is law, anyway? It is a body of principles that governs. The opposite of law is anarchy, where the strong devour the weak. The “law of the jungle” is not law, but power. So the powerful make law to serve their own power, but disguise power as law. This is positive law, both case law and statute law. It is the power of the sovereign, however one might define the term sovereign. Under positive law, it is lawful for the powerful to oppress the weak and for the big fish to eat the little fish. But we have a sense of right and wrong which is different sometimes from the positive law. This sense of right is a knowledge of natural law. Those without a conscience—sociopaths—do not see natural law. And even though I cannot define natural law in its breadth or in its details, I know it when I see it. The research and scholarship of Professor Helmholz and Professor Rabban are affirmative steps in the clarification of this subject. They, too, know it when they see it.


*  Blackstone Professor of Law, University of Richmond School of Law. LL.D., 2013, University of Cambridge; Ph.D., 1972, University of Cambridge; LL.M., 1968, University of Virginia School of Law; LL.B., 1967, Harvard Law School; B.A., 1963, Hampden-Sydney College.

        [1].    R.H. Helmholz, Natural Law in Court: A History of Legal Theory in Practice 13–40, 82–93, 127–41 (2015).

        [2].    Id. at 17, 89–90, 133–34.

        [3].    David M. Rabban, Law’s History: American Legal Thought and the Transatlantic Turn to History 325–80 (2013).

        [4].    See, e.g., C.C. Langdell, A Brief Survey of Equity Jurisdiction (1905); C. C. Langdell, A Summary of Equity Pleading (1877); Austin Wakeman Scott, The Law of Trusts (1939); James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (1898); Samuel Williston, The Law of Contracts (1920).

        [5].    Rabban, supra note 3, at 423–30, 474–77.

        [6].    378 U.S. 184, 197 (1964).

        [7].    Helmholz, supra note 1, at 178 (paraphrasing Thomas Aquinas’s assertion that “the more one descended into details and consequences, the more qualifications one was forced to admit”). We might further paraphrase Aquinas as “the devil is in the details.”

Reform Virginia’s Civil Asset Forfeiture Laws to Remove the Profit Incentive and Curtail the Abuse of Power

Reform Virginia’s Civil Asset Forfeiture Laws to Remove the Profit Incentive and Curtail the Abuse of Power

Rob Poggenklass, Reform Virginia’s Civil Asset Forfeiture Laws to Remove the Profit Incentive and Curtail the Abuse of Power, 50 U. Rich. L. Rev. Online 75 (2016).

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Reform Virginia’s Civil Asset Forfeiture Laws to Remove the Profit Incentive and Curtail the Abuse of Power

Rob Poggenklass*

In theory, asset-forfeiture seizures make excellent sense. They deprive criminal syndicates of the tools of their trade, and they provide much-needed funds for law-enforcement agencies. In reality, they’re a hot mess.”

Editorial, Richmond Times-Dispatch[1]

+++In November 2011, a trooper from the Virginia State Police pulled over a car on Interstate 95 near Emporia, Virginia, for traffic violations.[2] The trooper, who alleged that the driver was both traveling 86 mph in a 70 mph zone and following another vehicle too closely, never issued a citation or pressed charges against either of the two men inside the car.[3] Instead, the trooper seized $28,500 in cash.[4] Lawyers for Victor Guzman, the passenger in the car, had to convince a U.S. Attorney that the money consisted of cash donations to help build a church in El Salvador.[5] Guzman and his brother-in-law, the driver, were transporting the funds to Atlanta at the church’s request when the trooper stopped them.[6] The trooper had not accepted their attempts to explain the situation, in part because they said—honestly and accurately—that the money was not their own. Four months later, in March 2012, federal immigration authorities finally cut a $28,500 check to the church, returning the money seized by state police.[7]

+++Virginia’s civil asset forfeiture scheme for drug-related crimes is overdue for reform. Under Virginia law, the government can seize an individual’s car, cash, or other property without bringing corresponding criminal charges by filing a civil lawsuit alleging that the property is related to a criminal act.[8] In fact, even if criminal charges are brought, an acquittal will not necessarily prevent the government from seizing and keeping the assets. If it is probable the property is related to drug dealing, then most of the revenue from the forfeited property goes to the local law enforcement agency that seized the property.[9] These laws have resulted in a civil asset forfeiture regime that is considered one of the worst in the nation for property rights and due process protection.[10] For the government, however, it is immensely profitable. Since July 1991, more than $105 million in asset forfeiture funds have been distributed to Virginia law enforcement agencies.[11]

+++The precursors to today’s asset forfeiture laws date back centuries and were used in different forms throughout the history of our country. The current iterations of civil asset forfeiture laws were adopted, however, primarily in the 1980s as law enforcement tools in the war on drugs. Many states adopted asset forfeiture laws that allowed law enforcement agencies to seize property and money used in the drug trade.[12] These measures were sold to the public primarily as crime fighting tools to deprive drug dealers of resources needed for the illegal drug trade and as punitive measures to deprive criminals from the spoils of drug dealing.[13] They also allowed for the seized cash and proceeds from the sale of other seized property to be used in crime fighting efforts.[14]

+++Heralded as a valuable tool to counter the moneyed power of drug gangs and drug dealers, the implementation of civil asset forfeiture laws for illegal narcotics garnered significant criticism by civil liberties and property rights advocates from the outset. Property rights and due process concerns resulted in reforms of the federal forfeiture scheme in the 1990s and early 2000s. In Virginia, however, the low burden of proof required to confiscate property permanently and the award of forfeiture proceeds to local law enforcement agencies have resulted in an unjust civil asset forfeiture scheme in need of reform. The laws in Virginia have devolved from a purely utilitarian tool in the war on drugs to a revenue cow for cash-strapped local law enforcement agencies.

+++Part I of this article will review the historical roots of civil asset forfeiture law. Part II will provide a more modern history of these laws and an overview of Virginia’s current asset forfeiture scheme. Part III will examine the criticism of Virginia’s drug-related civil asset forfeiture laws and highlight due process concerns, risk of abuse of power, and misallocation of priorities due to the structure of these laws in Virginia. Finally, Part IV will provide recommendations to reform Virginia’s civil asset forfeiture laws.

I. History and Overview of Asset Forfeiture Laws

A. In Rem We Trust

+++Although the application of civil asset forfeiture has ballooned since the war on drugs started in the 1980s, the Supreme Court has noted that forfeiture of property is a time-honored method to prevent illegal activity.[15] Modern asset forfeiture jurisprudence is based on English common law theories that the government can seize property associated with criminal acts.[16] This legal theory, in turn, has roots in the Old Testament. According to Exodus 21:28, “If an ox gores a man or a woman to death, the ox shall surely be stoned and its flesh shall not be eaten; but the owner of the ox shall go unpunished.”[17] The implication of this biblical story is that “an ox can be a moral agent” of the injustice, even in the absence of any corresponding criminal culpability of the owner.[18] Similar concepts existed in the ancient Greek and Roman traditions of noxal surrender, “which involved the surrendering of the agent or instrument causing damage or death to the victim or his or her kin.”[19]

+++The notion that property, rather than an individual, could be held responsible evolved into the English common law concept of deodand. “Derived from the Latin phrase Deo Dandum, meaning to be given to God,” deodand involved forfeiting to the King personal property of the killer that was considered the imminent cause of an individual’s death. The practice was based on the view that the property that caused the death was guilty of an offense against God and that “religious atonement was required.”[20] The collection of guilty property eventually evolved[21] into the accepted theory that property could be taken from an owner regardless of whether the owner was actually convicted of a crime.[22] In fact, by some accounts, “[f]or the royal deodand collectors, the guilt or innocence of the object’s owner in relation to the accident had little or no relevance to the forfeiture of the property.”[23] The deodand’s biblical roots were eventually usurped and transformed by the mid-nineteenth century “into a revenue-raising device for the Crown.”[24]

+++The notion that property could be guilty and subject to legal proceedings was similarly applied in early English statutory forfeitures used to enforce the Navigation Acts of 1660.[25] These laws required that most commodities be transported in English vessels.[26] Illegally carried goods were subject to forfeiture and resulted in legal proceedings in the common law Court of the Exchequer.[27] These statutory forfeitures were most often enforced against the offending ship or cargo under in rem procedures.[28] The principles of in rem jurisdiction allow the court to obtain jurisdiction against the property, rather than against the property owner,[29] thereby creating a legal fiction in which the property becomes party to the judicial proceedings. This fictitious assumption, or legal sleight of hand, that the property itself could be guilty of English customs and navigation laws, was similarly adopted in early American jurisprudence.[30]

+++Adoption of in rem jurisdiction was particularly important in American admiralty law to allow for the forfeiture of ships and cargo to enforce customs violations and to punish piracy when in personam jurisdiction over property owners may have been impossible to establish.[31] In two early 19th century Supreme Court cases regarding the forfeiture of vessels whose crews were engaged in piracy, the Court upheld the government’s practice of bringing civil forfeiture actions in rem against the vessels rather than first obtaining in personam jurisdiction or a criminal conviction of the owner.[32] Recognizing that foreign owners of vessels would otherwise not be held accountable, the Court noted that:

It is not an uncommon course in the admiralty, acting under the law of nations, to treat the vessel in which or by which, or by the master or crew thereof, a wrong or [offense] has been done as the offender, without any regard whatsoever to the personal misconduct or responsibility of the owner thereof. And this is done from the necessity of the case, as the only adequate means of suppressing the [offense] or wrong, or insuring an indemnity to the injured party. The doctrine also is familiarly applied to cases of smuggling and other misconduct.[33]


+++The courts allowed for this legal fiction of in rem proceedings in which “[t]he thing is here primarily considered as the offender, or rather the offense is attached primarily to the thing”[34] as an extraordinary measure when the courts lacked personal jurisdiction over foreign owners of vessels.[35] Similarly, Virginia’s courts upheld as constitutional statutory forfeiture provisions that were not contingent on a criminal conviction, noting that the

property is unlawfully used by the owner himself, or by some other person with whom he has intrusted it; that it is so used in violation of law, and to the detriment of public and private interests, which can only be effectually protected by confiscating the property itself as the offender.[36]


+++Asset forfeiture laws were later expanded to include tax fraud and criminal racketeering in the early 20th century.[37] During the prohibition era of the 1920s, the federal government also used asset forfeiture to enforce temperance laws[38] and to combat illegal distilleries.[39]

II. Asset Forfeiture Law in Virginia

+++Virginia’s asset forfeiture laws developed piecemeal during the 20th century and have included provisions in the Alcoholic Beverages Control Act and various sections of the criminal procedure and crimes and offenses titles of the Virginia Code. Numerous revisions, additions, and substitutions have scattered asset forfeiture provisions throughout the code in a confusing labyrinth of laws.[40]

A. Virginia Alcoholic Beverages Control Act

+++Virginia’s Alcoholic Beverages Control Act, first adopted in 1934 and subsequently recodified and amended several times in different forms, provides for the forfeiture of illegal “stills and distilling apparatus and materials for the manufacture of alcoholic beverages.”[41] The provision also calls for the forfeiture of all weapons used by or found on individuals engaged in the unlawful manufacturing, transporting, or selling of alcoholic beverages, and all vehicles used in the unlawful manufacturing of alcoholic beverages that are “found in the immediate vicinity of any place where alcoholic beverages are being unlawfully manufactured.”[42]

+++The law provides that when items are seized under this provision, notice that the items were seized shall be provided by posting a copy of the warrant “on the door of the buildings or room where the articles were found, or if there is no door, then in any conspicuous place upon the premises.”[43] A hearing is held between ten and thirty days after the warrant is returned to determine if the seized items were used or possessed unlawfully.[44] The owner of the property or any person claiming an interest in the property may appear at the hearing and file a written claim setting forth his or her interest in the property. The code does not require a criminal conviction to forfeit property under this section.[45] All items forfeited under this section are turned over to the Alcoholic Beverages Control Board, and the net proceeds from the sale of the forfeited items are paid into the state’s Literary Fund, as required by the Virginia Constitution.[46]

B. Civil Forfeiture for Property Connected to the Illegal Distribution and Sale of Narcotics

+++The war on drugs ushered in a dramatic change to Virginia’s asset forfeiture scheme. Before a 1990 amendment to the Virginia Constitution, all proceeds from assets forfeited to the Commonwealth were constitutionally required to be paid to the Commonwealth’s Literary Fund.[47] In 1990, as part of the war on drugs, the Virginia Constitution was amended to allow for proceeds from certain drug offenses to circumvent the Literary Fund and instead be used to promote law enforcement.[48] Specifically, the constitutional provision provides:

The General Assembly may provide by general law an exemption from this section for the proceeds from the sale of all property seized and forfeited to the Commonwealth for a violation of the criminal laws of this Commonwealth proscribing the manufacture, sale or distribution of a controlled substance or marijuana. Such proceeds shall be paid into the state treasury and shall be distributed by law for the purpose of promoting law enforcement.[49]


Acting on this authority, the General Assembly amended the asset forfeiture provisions of the Virginia Code in 1991 to allow for proceeds from drug-related forfeitures to flow back to the law enforcement agencies involved with the seizures and forfeitures of the assets.[50]

+++The 1990 constitutional amendment and corresponding revision of the Virginia Code were proposed and adopted as a budgetary fix to combat drug trafficking by allowing law enforcement agencies to keep the proceeds from the forfeiture of drug-related assets.[51] Before the constitutional amendment, law enforcement agencies could use federal asset forfeiture procedures to bypass the state requirement that forfeiture proceeds be channeled to the Literary Fund. Local law enforcement agencies rarely used Virginia’s seizure and forfeiture laws, preferring instead to use the federal drug asset forfeiture sharing regime.[52] In 1988, federal lawmakers proposed reforms requiring forfeitures under the federal system to follow state laws on the distribution of forfeiture proceeds.[53] Fearing a budgetary constraint, lawmakers in Richmond pushed for a constitutional amendment that would allow the forfeiture proceeds in state court to revert back to local law enforcement efforts.[54] The U.S. Attorney for the Eastern District of Virginia at the time, Henry E. Hudson, revealed the true intent of the constitutional amendment when he said that the proposed federal reforms “could have a dramatic effect on state and local police who have harvested a great deal of money through this program.”[55] By changing the Virginia Constitution, law enforcement agencies were able to continue to “harvest” funds from civil forfeiture.

+++Additionally, before the constitutional amendment, Virginia’s asset forfeiture scheme was rarely used in some localities due to local court practices of requiring a criminal conviction before the courts would entertain forfeiture proceedings.[56] The amended forfeiture provisions ended this bifurcated system and clearly prescribed that civil asset forfeiture trials are independent of any criminal proceeding and do not require a criminal conviction.[57] The Virginia Association of Chiefs of Police even opposed the state law reforms enacted in 1990 and 1991 because, the chiefs argued, the state asset forfeiture program would not work as fast as the federal system.[58]

+++In conjunction with the constitutional amendment, the General Assembly added Chapter 22.1 of Title 19.2 (Va. Code Ann. §§ 19.2-386.1 et seq.) to provide specifically for the forfeiture of assets related to drug cases. The “comprehensive drug forfeiture” statute was adopted on the recommendation of the Virginia State Crime Commission to clarify forfeiture procedures specifically for drug-related forfeitures.[59] It codified that “forfeiture is a civil proceeding independent of any criminal action” and explicitly set the standard of proof as “a preponderance of the evidence.”[60] The change in the allocation of proceeds from the Literary Fund to law enforcement agencies, as well as the corresponding procedural changes, drastically altered the landscape of civil asset forfeiture in Virginia and ushered in an era of aggressive forfeiture actions and the corresponding criticism illustrated in Part III.[61]

C. 2012 Reforms

+++In addition to the provisions of Chapter 22.1 and the Alcohol Beverages Control Act, the Virginia Code also included forfeiture procedures for other crimes in Chapter 22.0 of Title 19.2. The scattered forfeiture rules created several distinct sets of procedures for civil asset forfeiture, depending on the underlying criminal activity. In 2012, the General Assembly consolidated the procedures outlined in Title 19.2, repealed Chapter 22.0, and adopted the drug-related forfeiture procedures of Chapter 22.1 as the default procedures for all forfeitures not otherwise specifically provided by law.[62] This newly renamed “Enforcement of Forfeitures” Chapter[63] was trumpeted by Delegate Jackson Miller as a significant reform that “removes confusion for Virginia’s law enforcement officials, Commonwealth’s attorneys, judges, defense attorneys, and citizens and ensures that criminal activity does not pay for its perpetrators.”[64] Unfortunately, the reforms did little to protect property rights or curb the potential abuse of power permitted by, if not embodied in, the civil asset forfeiture scheme.

D. The Mechanics of Forfeiture: Chapter 22.1

+++The statutory procedures in Chapter 22.1 provide a fast and efficient means for the Commonwealth to confiscate and keep property with limited protections to property owners. The Commonwealth must prove the connection between the asset and the offense only by a preponderance of the evidence.[65] Once a court makes that finding, the burden shifts to the claimant of the property to prove that the claimant’s interest in the property is exempt from forfeiture.[66]

+++After each seizure, the law enforcement agency must notify the Commonwealth’s Attorney in writing.[67] The Commonwealth’s Attorney has twenty-one days to file a notice of seizure with the clerk of the court, which, inter alia, specifically describes the property seized and identifies all owners and lienholders.[68] The clerk then mails notice of the seizure to the last known address of all identified owners and lienholders.[69] Within ninety days of the written notice by law enforcement (and within three years of the “actual discovery by the Commonwealth of the last act giving rise to the forfeiture”[70]) the Commonwealth’s attorney must file an information, which commences the judicial action against the seized property.[71] The information describes the property, names the known owners or lienholders of the property, and states the grounds for the forfeiture.[72] It also asks that all persons concerned or interested be notified to appear and show cause why the property should not be forfeited.[73]

+++Both the notice of seizure and the information are designed to “protect[ ] the property rights of the property owners or lienholders who have an interest in the seized property.”[74] Still, failure by the Commonwealth to file a notice of seizure with the clerk of the court within twenty-one days does not deprive the Circuit Court of jurisdiction.[75] If the Commonwealth fails to file an information within ninety days, however, the property is released to the owner or the lien holder.[76] This ninety-day period allows for the property to “be seized and secured for criminal investigative purposes.”[77]

+++After the Commonwealth files an information, the clerk of the court “shall forthwith mail by first-class mail notice of seizure for forfeiture to the last known address of all identified owners and lien holders.”[78] All identified owners and lien holders are served with a copy of the information and notice to appear, in accordance with the same service procedures generally used for all civil actions.[79] Virginia’s civil process procedures require service on the individual or substituted service if the person is not found at his usual place of abode.[80]

+++Within thirty days of receiving service of the notice, the property owner must file an answer to demonstrate why the property should not be forfeited.[81] The answer should, inter alia, clearly set forth the owner’s right of ownership and “the reason, cause, exception or defense he may have against the forfeiture of the property.”[82] An owner who does not file an answer will be found in default.[83]

+++After property is seized, the Commonwealth may return the property to the owner if the attorney for the Commonwealth believes that the property is exempt from forfeiture. But even this provision, which seems designed to protect the interest of property owners, requires that the property owner first pay “costs incident to the custody of the seized property.”[84]

E. Crimes Punishable by Forfeiture

+++Although Virginia’s current asset forfeiture scheme was first adopted for the seizure of assets related to narcotics possession and distribution, the law has been expanded to allow for the forfeiture of assets related to numerous other criminal acts. For example, moneys and property that are used in “substantial connection with an act of terrorism,” including interest or profits derived from such invests, are subject to forfeiture.[85] The computers used and profits derived from violations of the Virginia Computer Crimes Act, including embezzlement using a computer,[86] sending spam emails,[87] and using a computer to gather identifying information by trickery or deception,[88] are subject to forfeiture.[89] Virginia’s forfeiture laws are also used to combat money laundering,[90] illegal gambling,[91] and bribery of government officials,[92] by making the profits and moneys obtained from the illegal acts subject to forfeiture.

+++Vehicles that are knowingly used for the transpiration of stolen goods valued at over $200 or any property stolen as a result of robbery (regardless of the value) are subject to forfeiture.[93] Motor vehicles are also subject to forfeiture if the vehicle is used by the owner or with his knowledge during the commission or attempted commission of abduction of a minor or prostitution of a minor.[94] Similarly, vehicles are subject to forfeiture if used “during the commission of, or in an attempt to commit a second or subsequent offense” of certain sex crimes.[95] Finally, vehicles are subject to forfeiture for felony violations of the state’s driving while intoxicated law, unless an immediate family member of the defendant can prove that a significant hardship to the family will result if the vehicle is confiscated.[96]

+++In 2014, the General Assembly again expanded the number of crimes that can result in asset forfeiture. Under this most recent law, police may seize the person or real property involved in the crime of attempting to solicit a prostitute.[97] Thus, if a law enforcement agency were to set up an operation in which they posted a fake online advertisement for prostitution services and a person answered that ad from his or her own house, police could seize the house and keep it upon obtaining a conviction.

+++The revenue generated from these non-drug-related forfeitures goes to the Commonwealth’s Literary Fund and does not revert back to the localities.[98] A 2015 Virginia State Crime Commission report noted that data collection for non-drug related forfeitures “is not captured in a reliable, transparent manner.”[99] In a statewide survey, Crime Commission staff were unable to determine how much cash had been forfeited to the state this way and for which crimes, though fifteen law enforcement agencies reported non-drug related forfeiture amounts in fiscal year 2014 that totaled $159,972.[100]

III. Critical Analysis of Virginia’s Drug-Related Asset Forfeiture Scheme

+++Much like the deodand of English common law, Virginia’s drug-related civil asset forfeiture scheme can fairly be viewed as a means to fill the coffers of struggling localities rather than a tool to combat the scourge of predatory drug dealers. By allowing asset forfeitures from drug cases to bypass the Literary Fund and instead to fund state or local law enforcement agencies,[101] the General Assembly created a profit incentive for law enforcement agencies to prioritize seizure of drug-related assets over other policing initiatives. Limited safeguards for property owners stack the deck for the government to keep seized property and make it difficult for property owners to fight to keep their property. The vast sums of money and assets seized by law enforcement in Virginia encourage corruption or prosecutorial abuse.

A. A System Ripe for Abuse

+++According to a comprehensive study published by the Institute for Justice in 2010 that analyzed the civil asset forfeiture laws of all fifty states, Virginia’s forfeiture laws (along with Georgia, Michigan, Texas, and West Virginia) received the worst ranking for potential forfeiture abuse and poor property owner protection.[102] The report specifically cited the low burden of proof required of the government for the forfeiture of property and the burden on owners to establish their own innocence.[103] By holding the proceedings in civil court rather than criminal court, Virginia has created a system that allows for the forfeiture of property under a significantly lower standard of proof than is required for a criminal conviction. Whereas a criminal conviction requires proof beyond a reasonable doubt,[104] the Commonwealth must merely demonstrate by a preponderance of the evidence that the property is related to a crime and subject to forfeiture.[105]

+++Echoing the Institute for Justice report, a Richmond Times-Dispatch editorial noted, “the system remains ripe for abuse.”[106] At times, the moneys have been used for inappropriate and potentially unconstitutional activities.[107] In addition, limited oversight has also incentivized law enforcement agencies to engage in criminal embezzlement.

+++In Loudoun County, Sheriff Steve Simpson used proceeds from asset forfeiture for what appeared to be self-promoting causes rather than “promoting law enforcement,” as required by the Virginia Constitution.[108] He used proceeds to rebrand a privately developed computer software program (the “ComputerCOP” program) with his picture and a personal message “from the sheriff.”[109] The Sheriff’s Office then distributed the ComputerCOP program to families in Loudoun County to allow parents to monitor and block their children’s internet activity.[110] In a nationwide study, the Electronic Frontier Foundation concluded that “ComputerCOP is actually just spyware” with significant security issues that leave everyone using the program exposed.[111]

+++In 2010, the Department of Criminal Justice Services reprimanded the Richmond Police Department for spending several thousand dollars in forfeiture funds to buy birthday gifts for employees.[112] In 2009, the city manager of Norfolk publicly criticized Police Chief Bruce Marquis for spending $3,000 in forfeiture funds to buy coffee mugs as gifts for attendees of a conference for law enforcement executives.[113]

+++There is also limited accountability in some jurisdictions over the money provided to the local law enforcement agencies. An investigation by the Virginia State Police into the embezzlement and misappropriation of forfeiture funds by Halifax County Sheriff Stanley Noblin revealed that the Sheriff appeared to have broad authority to access the funds with little oversight, and no outside authorization required.[114] While the Criminal Justice Board recommends that localities require a prosecutor or partnering law enforcement agency to co-authorize withdrawals of cash used in drug busts and other investigations, Halifax County did not require such co-authorization.[115] According to local news accounts, from May 2009 to March 2011, Sheriff Noblin withdrew about $48,500 from the asset forfeiture funds for undercover drug buys, informant tips, and testimony.[116] These cash withdrawals, among other allegations, prompted the Virginia State Police to investigate alleged embezzlement charges against the sheriff.[117] According to an affidavit filed by the Virginia State Police investigator, there were no records in ledgers or bank statements to account for the use of the cash withdrawals, and during the same period Sheriff Noblin deposited thousands of dollars in cash into bank accounts under his exclusive control.[118]

+++Former Middlesex County Sheriff Guy Abbott also misappropriated money from the sheriff’s office’s asset forfeiture fund from 2003 to 2008.[119] In August 2012, he was found guilty of using asset forfeiture funds to bribe two of his subordinates. During Abbott’s trial, the judge struck several counts of misusing forfeiture funds to procure two boats and hand out “Christmas bonuses” to twenty-one employees, on the grounds that the money spent “could be viewed as related to law enforcement purposes.”[120]

B. The Profit Incentive

+++Returning money to localities also creates an incentive for elected Commonwealth’s Attorneys to turn asset forfeiture into a political platform, and reinforces the perception that it is used primarily as a means to fund cash-strapped law enforcement agencies.[121] Arthur Goff, the Rappahannock County Commonwealth’s Attorney, defends the use of drug-related asset forfeitures as “important sources of funding for the policing of drug dealing, and help to relieve the burden on taxpayers.”[122] Likewise, Amanda McDonald Wiseley, a candidate for Shenandoah County Commonwealth’s Attorney, proposed pursuing asset forfeitures more aggressively to “offset some costs to the taxpayers.”[123]

+++The revenue-raising incentives of the current drug-related asset forfeiture scheme also create a conflict of interest between revenue generation for police departments and strategic narcotics policing, resulting in distorted prioritization by some law enforcement agencies and individual officers. Given the potential windfall, police administrators can be enticed easily to prioritize targeting revenue-bearing criminal activity.

+++This is not merely a theoretical hypothesis made by asset forfeiture critics, but has been substantiated with both ethnographic studies of police departments engaged in asset forfeiture and by economic analyses of crime data for law enforcement agencies that retain profits from seized assets and those that do not. In a 1994 study published in Justice Quarterly, researchers documented police officers targeting lesser value, first-time drug dealers in order to seize vehicles, rather than apprehend asset-poor drug dealers slinging significantly larger quantities of narcotics.[124] A study published by economists from the American Enterprise Institute and Florida State University raised similar concerns and revealed that those agencies that retain drug-related assets disproportionately allocate resources to narcotics policing.[125] Controlling for drug usage, the study found that “[l]egislation permitting police to keep a portion of seized assets raises drug arrests as a portion of total arrests by about 20 percent and drug arrest rates by about 18 percent.”[126]

+++The purpose of asset forfeiture as a strategic drug-supply reduction tool and crime deterrent has been altered by the revenue-raising goal. Asset forfeiture is no longer viewed primarily as a strategic tool to combat narcotics distribution. Instead, “the motivation for law enforcement agencies to pursue forfeiture has become that it serves the institutional interests in self-perpetuation, with the possible collateral benefit of helping to fight drug crime.”[127]

+++Over the last decade, law enforcement agencies in Virginia have received $32,561,236 in drug-related asset forfeitures through the state’s asset forfeiture program.[128] As illustrated by Table 1, all parts of the state’s asset forfeiture program have increased significantly from 2006 to 2015. The vast majority of the seized assets are motor vehicles and currency, accounting for 89% of all items seized between fiscal years 2010 and 2015.[129] Certain localities were able to supplement their budgets with windfall one-day hauls of hundreds of thousands of dollars in cash. For example, the Henrico Police Department seized about $725,000 of cash in one day in March 2009.[130] The City of Newport News similarly added to the Police Department and Sheriff’s Department’s budgets in May 2011 with two hauls equaling more than half a million dollars.[131]

Table 1: Value of Asset Forfeitures in Virginia[132]

Screen Shot 2016-03-09 at 11.46.12 PM

+++Virginia’s drug-related forfeiture laws have shifted from what was proposed as a benign revenue-raising mechanism to help fund local law enforcement agencies into a potentially corruption-inducing scheme used to “harvest” funds. The need to fund law enforcement should not override corruption concerns and due process failures. As the Richmond Times-Dispatch noted, “[i]f police departments around the state lack sufficient resources, then their city councils and boards of supervisors are falling down on the job. Local governments should raise the funds needed to pay for local services, including law enforcement—the most important local service of all.”[133]

IV. Proposed Reforms

+++Much of the criticism levied against Virginia’s civil asset forfeiture scheme, specifically the scheme for forfeiture of drug-related assets, can be negated by implementing several simple reforms. Four reforms are essential to improving Virginia’s current scheme: (1) the requirement of a criminal conviction for all asset forfeitures; (2) the elimination of the profit incentive for law enforcement agencies; (3) limits on the ability of law enforcement agencies to forum shop in federal court; and (4) increased accountability through improved reporting requirements for localities that collect forfeitures. In the alternative, if Virginia cannot summon the will to make these substantial reforms, it must at a bare minimum increase the burden of proof in civil asset forfeiture actions.

A. Require a Criminal Conviction for All Forfeitures

+++The first reform is to tie the forfeiture of assets to criminal prosecution. Allowing for forfeiture in civil court without any corresponding criminal charges, let alone conviction, is anathema to fundamental notions of justice. Virginia should require the stay of all asset forfeiture proceedings until a finding of guilt is entered on the alleged offense that prompted the seizure. The Commonwealth should first have to secure a criminal conviction, and then use the conviction as a basis for criminal forfeiture proceedings.

+++Advocates for civil asset forfeiture claim that asset forfeiture laws are needed to dismantle drug rings by not only targeting the criminal actors but also the criminal enterprise. This argument fails, however, because the goal can still be achieved by tying the asset forfeiture to the criminal prosecution. Criminal forfeiture, not civil forfeiture, should become the norm.

+++As Congress recognized when it reformed federal asset forfeiture laws in 2000,[134] removing assets without criminal prosecutions will not cease drug activity.[135] Congressman Henry Hyde noted that “[i]n more than 80 percent of asset forfeiture cases the property owner is not even charged with a crime, yet the government officials can and usually do keep the seized property.”[136] While similar data is not available in Virginia, the current scheme allows for comparable abuse of forfeiture laws. In Richmond, civil forfeiture cases are generally brought in conjunction with criminal charges.[137] Such practices, however, are at the discretion of each Commonwealth’s Attorney. Virginia should follow the lead of other states[138] and require that a defendant be convicted of an underlying or related criminal action in order for property to be subject to forfeiture.

+++The nebulous realm of civil asset forfeiture and the legal fiction created to justify its use have resulted in a twisted logic to remove procedural safeguards that are fundamental to the American criminal justice system. Although the stated targets of asset forfeiture are “criminals and their associates,”[139] the Virginia courts have noted that,

Forfeiture is, however, not a criminal proceeding but a “civil” action against “res” unlawfully employed by its owner or other person. Although related to criminal activity, forfeiture is neither “penalty” nor “punishment” for an offense and remains entirely separate and distinct from a prosecution of its owner or other individual.[140]


+++The strained reasoning required to create the legal fiction of in rem jurisdiction for asset forfeiture makes a mockery of forfeiture jurisprudence. The Virginia legislature and the courts have created an absurd reality, sanctioning the confiscation of property related to criminal conduct yet denying that the forfeiture is punishment for crimes committed. Treating forfeiture as a pseudo non-punishment opens the door to disregard of due process concerns and property rights. This door can easily be shut, and property rights reaffirmed, by linking asset forfeiture to the criminal justice system.

+++In 2015, legislation was proposed to require a criminal conviction for asset forfeitures in Virginia.[141] House Bill 1287, introduced by Delegate Mark Cole, would have required a stay of all forfeiture proceedings “until conviction” of the offense authorizing the forfeiture and “the exhaustion of all appeals.”[142] The bill passed the House 92–6,[143] but died in the Senate Finance Committee.[144] Delegate Cole reintroduced similar legislation for the 2016 session.[145] House Bill 48, which would have required a stay of forfeiture proceedings until the owner of the property is found guilty,[146] was defeated on a 50–47 vote. Senator Chap Petersen filed similar legislation in the Senate,[147] but the Senate Finance Committee did not approve it. Senator Petersen later brought the issue to a floor vote by amending another asset forfeiture bill, but the measure failed, 24–16.[148]

B. Eliminate the Profit Incentive for Law Enforcement Agencies

+++The biggest reform needed to ensure trust in the asset forfeiture program is to eliminate the profit incentive for law enforcement agencies to target certain crimes and properties. The government’s pecuniary interest in seizing assets gives the appearance—and sometimes creates the reality—that asset forfeiture is more of a police fund raiser than a legitimate drug enforcement tool. As one law enforcement official stated, “[i]n tight budget periods, and even in times of budget surpluses, using asset forfeiture dollars to purchase equipment and training to stay current with the ever-changing trends in crime fighting helps serve and protect the citizens.”[149] The Virginia State Police alone received asset forfeitures totaling $44 million from a 2007 settlement, as a reward for its role in a three-year investigation.[150] The agency used the funds to complete a driving track, build a new forensics laboratory, update and expand its communications networks, and make capital improvements to its aviation program, among other items.[151]

+++So “long as these incentives remain, law enforcement agents are motivated by profit; they lose sight of the due process and private property rights principles involved.”[152] Even law enforcement officials have admitted that monetary gains cloud the forfeiture system. The director of the Department of Justice’s Asset Forfeiture Office under the George H.W. Bush Administration stated, “[w]e had a situation in which the desire to deposit money into the asset forfeiture fund became the reason for being of forfeiture, eclipsing in certain measure the desire to effect fair enforcement of the laws.”[153]

+++The purchase of needed equipment, protective gear, computers, and vehicles should not rely on raising funds from property seizures. Even if municipal budgets do not explicitly account for forfeiture proceeds, the dialogue in political campaigns for more aggressive forfeiture programs gives the perception that police priorities are set by the potential financial gains. Instead, the money should revert back to the Literary Fund or should go directly to providing for victims of crimes and rehabilitative programs for offenders. In Pennsylvania, forfeiture proceeds are used for drug abuse programs and the witness relocation and protection programs.[154] This allows for the proceeds to remain in the criminal justice system without the perverse incentive of the law enforcement agency to receive profits for their policing endeavors.

C. Limit Access to Equitable Sharing and Federal Adoptive Forfeitures

+++Unfortunately, as procedures for asset forfeitures under Virginia law become less enticing to law enforcement than federal procedures, localities will likely forum shop to federal court.[155] Under the federal equitable sharing program, a participating state or local law enforcement agency may petition a federal agency to assist either through a joint investigation or by federal adoption of a local or state seizure.[156] So long as the property is subject to forfeiture under federal law, a federal agency such as the FBI, DEA, or ATF may assist with the forfeiture.[157] In adoptive forfeitures, the federal government will generally return 80% of the proceeds to the local or state law enforcement agency that requested the assistance.[158] The federal equitable sharing program has expanded rapidly: the Department of Justice paid $681 million to state and local law enforcement agencies in fiscal year 2012, up from $440 million in 2011.[159]

+++In other states that have attempted to tighten their asset forfeiture laws, state and local law enforcement agencies have increasingly turned to federal equitable sharing. Missouri first enacted asset forfeiture reforms in 1993,[160] with the goals of limiting abuse, ending participation in federal adoptive forfeitures, and increasing the state’s share of forfeiture assets relative to the federal government.[161] A 1999 report by the state auditor found that 85% of all forfeitures in Missouri still went through the federal government.[162] In 2001, the state legislature passed a new reform bill, this time with the goals of eliminating both the profit incentive and the circumvention of a state law that requires forfeited assets to be deposited into the state’s education fund.[163] Yet by 2008, Missouri law enforcement agencies were taking in more forfeiture dollars—more than $10 million in fiscal year 2008—than they did before the 2001 reforms.[164]

+++Reforms in other states suggest, however, that ties to equitable sharing can be cut. The federal government suspended Oregon and Utah from the equitable sharing program after those states passed reforms that forced asset forfeiture funds out of law enforcement budgets.[165] City council members in the District of Columbia, who recently passed similar reforms, noted that the possibility of getting suspended from equitable sharing is a “benefit of the legislation, not a detriment.”[166]

+++The federal equitable sharing program recently encountered a stumbling block: in December 2015, the Department of Justice suspended payments because of budget cuts in a 2015 spending bill.[167] This temporary defunding of the program may significantly limit the ability of Virginia law enforcement agencies to receive funds from the federal civil asset forfeiture program. The Department of Justice intends to restart equitable sharing payments, however, as soon as “there are sufficient funds in the budget.”[168]

+++Nevertheless, to permanently eliminate the equitable sharing forum-shopping problem, Virginia should require that any funds received from the federal government through equitable sharing, adoptive forfeitures, or other civil asset forfeiture programs shall go directly to the Literary Fund. This would require a reworking of the law governing sharing of forfeited assets for Virginia law enforcement agencies.[169] State law should also prohibit Virginia law enforcement agencies from applying for equitable sharing funds from the federal government without first obtaining a criminal conviction in the case.

D. Adopt Clear and Transparent Reporting Requirements

+++In order to engender trust in the system, the Commonwealth should adopt clear and transparent reporting requirements and publish them for public view. Each locality should be required to publish a list of asset forfeiture cases and the corresponding criminal charges. The localities are already required to report all asset forfeitures to the Department of Criminal Justice Services (DCJS).[170] Until 2016, there was no requirement that DCJS compile this data or publish it in a useful form, leaving the burden on Virginia residents to file Freedom of Information Act requests if they want to see the data, and then find experts to help them make the data useful. A new law partially addresses the problem.[171] In December 2015, the Virginia State Crime Commission voted to recommend several changes, including a requirement that DCJS compile an annual report of all asset forfeitures for the General Assembly.[172] Based on that recommendation, House Bill 771 provides that DCJS must submit an annual report of asset forfeitures, including the amounts distributed to each law enforcement agency and to the Literary Fund.[173]

+++The law does not, however, require law enforcement to report whether a seizure corresponds to a criminal case. This additional requirement of reporting a corresponding criminal charge would not be an onerous task for the law enforcement agency and could provide for significant public accountability.

E. Increase the Burden of Proof

+++If asset forfeiture remains a civil action, then the standard of proof must be increased to protect property owners. Although the stated purpose of civil asset forfeiture laws is to deter criminal behavior, prosecutors seeking forfeitures are allowed to operate under civil rules.[174] With these rules come a series of problems for property owners, not least of which is the government’s significantly reduced burden of proof. While the Commonwealth must prove beyond a reasonable doubt that an individual is guilty of a criminal activity to secure a criminal conviction, the Commonwealth needs to prove only by a preponderance of the evidence that property is eligible for asset forfeiture.[175] The preponderance of the evidence standard is generally satisfied when the proposition “is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal, notwithstanding any doubts that may linger there.”[176] In comparison, a “clear and convincing” standard, while still lower than proof beyond a reasonable doubt, would require the Commonwealth to “produce evidence that creates in” the mind of the judge or jury “a firm belief or conviction that [the Commonwealth] have proved the issue.”[177] Even if no other reform is adopted, Virginia should join the sixteen other states that use “clear and convincing” or “beyond a reasonable doubt” standards to confiscate property permanently.[178]

+++Civil cases are subject to a lesser burden of proof than criminal cases because “the consequence of losing a case, although serious enough in many cases, is not considered to be” so severe as to require proof beyond a reasonable doubt.[179] While this rationale makes sense for most civil litigation, the relinquishment of property rights to the government is a sufficiently serious consequence to require a higher standard of proof.

+++For example, when Fairfax County police pulled over Mandrel Stuart in August 2012 for tinted windows and a video playing in his sightline, they did not charge him with a crime but seized $17,550 in cash.[180] Stuart, who is black, maintained that he was taking the cash to Washington D.C. to buy supplies for his restaurant, but an officer found less than one hundredth of a gram of marijuana and kept the money.[181] After a day-long trial, a jury took thirty-five minutes to find that the federal government must return Stuart’s money and pay his legal fees of $11,825.40.[182] In the meantime, however, Stuart lost his barbeque restaurant business in Staunton.[183]

+++Further diminishing the rights of property owners is the shift of the burden of proof to the property owner after the government establishes that the property is subject to forfeiture, requiring property owners to prove that the property is exempt from forfeiture.[184] This shift in the burden of proof essentially requires property owners to prove their innocence and flies in the face of the presumption of innocence principle embedded in our criminal justice system. Innocent property owners who are unable to afford an attorney are at significant disadvantage due to this onerous requirement. Even for property owners who can afford an attorney, the costs of an attorney may not justify challenging the forfeiture of property valued at only a couple thousand dollars. In order to bolster due process protections for property owners, Virginia should remove the burden-shifting requirement.


+++Virginia’s asset forfeiture laws are deeply ingrained in the judicial history of the Commonwealth. Reforms adopted twenty-five years ago to combat the distribution of narcotics significantly changed the landscape, however, creating a profit incentive scheme for law enforcement agencies and taking property from individuals without adequate procedural safeguards. As law enforcement revenues have climbed into the millions, civil asset forfeiture has become policing for profit rather than public safety. Importantly, some policymakers have recognized how civil asset forfeiture compromises fundamental principles of American justice.[185] Virginia must do more to end this abusive practice.


*   Tony Dunn Legal Fellow, ACLU of Virginia. J.D., William & Mary Marshall-Wythe School of Law; B.A., Cornell College. Funding for the fellowship that allowed me to research and write this paper at the ACLU of Virginia was provided by the Tony Dunn. Foundation. Invaluable research assistance was provided by Thomas Okuda Fitzpatrick, a former Dunn Fellow and a fellow 2010 graduate of William & Mary Law School. I am also grateful for the comments and encouragement of Rebecca Glenberg and Claire Guthrie Gastañaga.

        [1].    Editorial, Law Enforcement: Inexcusable, Rich. Times-Dispatch, June 29, 2010, at A6 [hereinafter Editorial, Law Enforcement: Inexcusable].

        [2].    Editorial, Forfeiture Without Due Process, Wash. Post (Jan. 2, 2012), http://www. washingtonpost.com/opinions/forfeiture-without-due-process/2011/12/22/gIQAckn3WP_sto ry.html.

        [3].    Id.

        [4].    Id.

        [5].    Cases: Some Forfeiture Cases Which David Smith Defended or for Which He Provided Counsel or Expert Testimony: 2012 Highway Robbery, Smith & Zimmerman (2015), http://smithzimmerman.com/cases/.

        [6].    Id.

        [7].    Id.

        [8].    Va. Code Ann. § 19.2-386.22 (Repl. Vol. 2015).

        [9].    Jarret B. Wollstein, The Government’s War on Property, Found. for Econ. Educ. (July 1993).

      [10].    Marian R. Williams et al., Inst. for Just., Policing for Profit: The Abuse of Civil Asset Forfeiture 96–97 (Mar. 2010), http://www.ij.org/images/pdf_folder/other_ pubs/assetforfeituretoemail.pdf.

      [11].    Va. Dep’t of Crim. Just. Servs., Program Statistics, http://www.dcjs.virgin ia.gov/fasp/stats.cfm (last visited Mar. 7, 2016).

      [12].    J.F., What Civil Asset Forfeiture Means, Economist (Apr. 14, 2014), http://www. economist.com/node/21598852.

      [13].    See Jimmy Gurulé et al., The Law of Asset Forfeiture 229–30 (2d ed. 2004).

      [14].    Williams et al., supra note 10, at 15.

      [15].    See General Motors Acceptance Corp. v. United States, 286 U.S. 49, 56 (1932) (“Forfeiture of vehicles bearing smuggled goods is one of the time-honored methods adopted by the government for the repossession of the crime of smuggling.”).

      [16].    Howard E. Williams, Asset Forfeiture: A Law Enforcement Perspective 8 (2002).

      [17].    Exodus 21:28 (New American Standard Bible).

      [18].    Henry J. Hyde, Forfeiting Our Property Rights: Is Your Property Safe from Seizure? 17 (1995).

      [19].    Gurulé et al., supra note 13, at 4.

      [20].    Howard E. Williams, Asset Forfeiture: A Law Enforcement Perspective 8 (2002).

      [21].    Id.

      [22].    Gregory M. Vecchi & Robert T. Sigler, Assets Forfeiture: A Study of Policy and Its Practice 42 (2001).

      [23].    Hyde, supra note 18, at 18.

      [24].    Gurulé et al., supra note 13, at 8; see also Parker-Harris Co. v. Tate, 188 S.W. 54, 55 (Tenn. 1916) (“Needless to say, historians record that the ‘pious uses’ under the control of the king and his almoner became a scandal which moderns would describe as being graft.”).

      [25].    Austin v. United States, 509 U.S. 602, 612 (1993); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 682 (1974) (“English Law provided for statutory forfeitures of offending objects used in violation of the customs and revenue laws—likely a product of the confluence and merger of the deodand tradition and the belief that the right to own property could be denied the wrongdoer.”)

      [26].    See Austin, 509 U.S. at 612.

      [27].    See Howard E. Williams, Asset Forfeiture: A Law Enforcement Perspective 8 (2002).

      [28].    See Calero-Toledo, 416 U.S. at 682.

      [29].    Black’s Law Dictionary defines in rem jurisdiction as “[a] court’s power to adjudicate the rights to a given piece of property, including the power to seize and hold it.” Black’s Law Dictionary (8th ed. 2004).

      [30].    See Austin, 509 U.S. at 616.

      [31].    Gurulé et al., supra note 13, at 13; Williams, supra note 27, at 9; see, e.g., Harmony v. United States, 43 U.S. (2 How.) 210, 233 (1844).

      [32].    The Palmyra, 25 U.S. (12 Wheat) 1, 14–15 (1827); United States v. Cargo of the Brig Malek Adhel, 42 U.S. (2 How.) 210 (1844).

      [33].    United States v. Cargo of the Brig Malek Adhel, 42 U.S. (2 How.) 210, 233 (1844).

      [34].    The Palmyra, 25 U.S. (12 Wheat) 1, 14 (1827).

      [35].    See Gurulé et al., supra note 13, at 14.

      [36].    Boggs v. Commonwealth, 76 Va. 989, 995 (1882).

      [37].    Dee R. Edgeworth, Asset Forfeiture: Practice and Procedure in State and Federal Courts 23–24 (3d ed. 2014).

      [38].    See generally, e.g., United States v. One Ford Coupe Auto., 272 U.S. 321 (1926); Dodge v. United States, 272 U.S. 530 (1926); Donald J. Boudreaux & A.C. Pritchard, Innocence Lost: Bennis v. Michigan and the Forfeiture Tradition, 61 Mo. L. Rev. 593, 627 (1996) (“Prohibition brought forfeiture into common use in the United States.”).

      [39].    Edgeworth, supra note 37, at 23–24.

      [40].    Warren Fiske, Proposals Delayed, But on the Way, Politifact Virginia (Oct. 3, 2011, 8:35 AM), http://www.politifact.com/virginia/promises/bob-o-meter/promise/1002/con solidate-asset-forfeiture-laws/.

      [41].    Va. Code Ann. § 4.1-336 (Cum. Supp. 2015); 1934 Va. Acts 100, 105–06 (codified as amended at Va. Code Ann. § 4.1-336 (Cum. Supp. 2015)).

      [42].    Va. Code Ann. § 4.1-336 (Cum. Supp. 2015).

      [43].    Id. § 4.1-338(B) (Repl. Vol. 2010).

      [44].    Id.. § 4.1-338(C) (Repl. Vol. 2010).

      [45].    Id.

      [46].    Va. Const. art. VIII, § 8; Va. Code Ann. § 4.1-338(D) (Repl. Vol. 2010). Interestingly, the code provides that if alcoholic beverages cannot be sold, the alcoholic beverages may be gifted to mental health hospitals and elderly houses for medicinal purposes. Likewise, foodstuffs that cannot be sold but are usable may be gifted to local jails and correctional facilities. Va. Code Ann. § 4.1-338(D) (Repl. Vol. 2010).

      [47].    Va. Const. art. VIII, § 8. “The Literary Fund is a permanent and perpetual school fund established in the Constitution of Virginia. Revenues to the Literary Fund are derived primarily from criminal fines, fees, and forfeitures, unclaimed and escheated property, unclaimed lottery winnings and repayments of prior Literary Fund loans. The Literary Fund provides low-interest loans for school construction, grants under the interest rate subsidy program, debt service for technology funding, and support for the state’s share of teacher retirement required by the Standards of Quality.” Literary Fund Loans, Va. Dep’t of Educ., http://www.doe.virginia.gov/support/facility_construction/literary_fund_loans/ index.shtml (last visited Mar. 7, 2016); see also Va. Code Ann. § 22.1-142 (Cum. Supp. 2015).

      [48].    John Dinan, The Virginia State Constitution 208 (2014).

      [49].    Va. Const. art. VIII, § 8. This provision was ratified on November 6, 1990, and became effective January 1, 1991.

      [50].    Id.; 1991 Va. Acts. 995–96; Va. Code Ann. § 19.2-386.14 (Repl. Vol. 2015).

      [51].    Va. State Crime Comm’n, Asset Seizure and Forfeitures, H. 60-7, Reg. Sess., at 2, 16–17 (Va. 1989).

      [52].    Id. at 13–14.

      [53].    Eric Blumenson & Eva Nilsen, Policing for Profit: The Drug War’s Hidden Economic Agenda, 65 U. Chi. L. Rev. 35, 107 (1998).

      [54].    Robert F. Howe, Law Imperils Va. Drug Effort; Assets Seized in Investigations Must Now Go to Literary Fund, Wash. Post, Oct. 3, 1989, at B3.

      [55].    Id.

      [56].    Va. State Crime Comm’n, Asset Seizure and Forfeitures, supra note 51, at 6. Although a criminal conviction was not required, as a matter of law, the Virginia State Crime Commission found that as a practical matter, courts in many jurisdictions required a criminal conviction in order for the state to forfeit assets. Id.

      [57].    Va. Code Ann. § 19.2-386.10(B) (Repl. Vol. 2015).

      [58].    See Leslie Postal, Police Oppose Proposal: Many Dislike Plan to Return Drug Assets, Daily Press (Jan. 24, 1991), http://articles.dailypress.com/1991-01-24/news/9101250 257_1_drug-raids-million-in-drug-assets-chiefs-association (explaining police chiefs’ plans to circumvent state law by using federal agents in raids as a result of their distaste for the unnecessary delays created by the proposed legislation).

      [59].    Va. State Crime Comm’n, Asset Seizure and Forfeitures, supra note 51, at 2.

      [60].    Id.

      [61].    See infra Part III.

      [62].    2012 Va. Acts 473, 476 (codified as amended at Va. Code Ann. § 19.2-386.1 (Repl. Vol. 2015)).

      [63].    Id.

      [64].    Dan Telvock, Gov. McDonnell Signs Public Safety Bills in Stafford, Patch.com (July 18, 2012), http://patch.com/virginia/fredericksburg/gov-mcdonnell-signs-public-safe ty-bills-in-stafford.

      [65].    Va. Code Ann. § 19.2-386.10(A) (Repl. Vol. 2015). The statutory provisions for whether property is subject to forfeiture depend on the nature of the property and of the criminal act and are still codified in provisions scattered throughout the criminal code and in Chapter 22.2. Id. § 19.2-386.1 (Repl. Vol. 2015).

      [66].    Id. § 19.2-386.10 (A) (Repl. Vol. 2015). The code provides several exceptions: an owner or lienholder’s interest may not be forfeited if the court finds that the owner or lienholder “did not know and had no reason to know of the conduct giving rise to the forfeiture,” or if the owner or lienholder “was a bona fide purchaser for value without notice.” Id. § 19.2-386.8 (Repl. Vol. 2015). Additionally, if “the conduct giving rise to forfeiture occurred without” the owner or lienholder’s expressed or implied consent or connivance, then the property may not be forfeited. Id.

      [67].    Id. § 19.2-386.3(A) (Repl. Vol. 2015). The timeframe for notifying the Commonwealth is not specified and merely requires that it take place “forthwith.” Id.

      [68].    Id.

      [69].    Id.

      [70].    Id. § 19.2-386.1 (Repl. Vol. 2015).

      [71].    Id. § 19.2-386.3 (Repl. Vol. 2015).

      [72].    Id. § 19.2-386.1 (Repl. Vol. 2015).

      [73].    Id.

      [74].    Commonwealth v. Wilks, 530 S.E.2d 665, 667 (2000).

      [75].    Id.

      [76].    Va. Code Ann. § 19.2-386.3(A) (Repl. Vol. 2015). Additionally, if the Commonwealth fails to file within ninety days, courts lose jurisdiction over the forfeiture. Commonwealth v. Brunson, 448 S.E.2d 393, 397 (1994).

      [77].    Mallory v. City of Richmond, No. CH-05-688, 2005 WL 2548494, at *3 (Va. Cir. Ct. Sept. 23, 2005).

      [78].    Va. Code Ann. § 19.2-386.3(A) (Repl. Vol. 2015).

      [79].    Id. § 19.2-386.3(B) (Repl. Vol. 2015); Id. § 8.01-296 (Repl. Vol. 2015).

      [80].    Id. § 8.01-296(2) (Repl. Vol. 2015). As in most other states, substitute service can be achieved by delivering the documentation with another family member who is sixteen years or older and lives at the house, or by posting a copy of the process at the front door and mailing copies of the documents at least ten days before judgment by default may be entered. Id. If neither of these substitute service options can be effected, then service can be performed by order of publication. Id. § 8.01-296(3) (Repl. Vol. 2015).

      [81].    Id. § 19.2-386.3 (Repl. Vol. 2015); see also id. § 19.2-386.1 (Repl. Vol. 2015). (The information shall “ask that all persons concerned or interested be notified to appear and show cause why such property should not be forfeited.”)

      [82].    Id. § 19.2-386.9; see also id. § 19.2-386.3 (Repl. Vol. 2015) (using similar language to describe what the answer should state).

      [83].    Id. § 19.2-386.10 (Repl. Vol. 2015). A property owner can obtain possession of the property while the matter is pending before the court by posting a bond. Va. Code Ann. § 19.2-386.6 (Repl. Vol. 2015). If the owner fails to file an answer and is found in default, the code provides an owner one last chance to prove one of the exceptions to the Department of Criminal Justice Services. Id.§ 19.2-386.10 (Repl. Vol. 2015).

      [84].    Id. § 19.2-386.5 (Repl. Vol. 2015).

      [85].    Id. § 19.2-386.15 (Repl. Vol. 2015).

      [86].    See id. § 18.2-152.3 (2) (Supp. 2015).

      [87].    See id. § 18.2-152.3:1(A)(1) (Supp. 2015).

      [88].    See id. § 18.2-152.5:1(A) (Supp. 2015).

      [89].    See id. § 19.2-386.17 (Repl. Vol. 2015).

      [90].    See id. § 19.2-386.19 (Repl. Vol. 2015).

      [91].    See id. § 19.2-386.30 (Repl. Vol. 2015).

      [92].    See id. § 2.2-3124 (Supp. 2015).

      [93].    See id. § 19.2-386.16(A) (Repl. Vol. 2015). The vehicle forfeiture procedure that was previously contained in the Alcoholic Beverages Act, Va. Code Ann. § 4.1-340 (Repl. Vol. 1993), was repealed in 2012. 2012 Va. Acts 1609, 1614, 1618.

      [94].    See Va. Code Ann. § 19.2-386.16(B) (Repl. Vol. 2015).

      [95].    Id. § 19.2-386.16(A) (Repl. Vol. 2015).

      [96].    See id. § 19.2-386.34 (Repl. Vol. 2015).

      [97].    See id. § 19.2-386.35 (Repl. Vol. 2015).

      [98].    Va. Const. art. VIII, § 8; see Va. Code Ann. § 19.2-386.14 (Repl. Vol. 2015).

      [99].    Va. State Crime Comm’n, Asset Forfeiture (SB 684/HB 1287) 86 (Oct. 27, 2015), http://vscc.virginia.gov/Asset%20Forfeiture_FINAL-1.pdf.

    [100].    See id. at 84.

    [101].    Va. Const. art. VIII, § 8; see Va. Code Ann. § 19.2-386.14 (Repl. Vol. 2015).

    [102].    Williams et al., supra note 10, at 96. A subsequent assessment by the Institute for Justice rendered a similarly dire assessment: Virginia received another D- grade, while only two states (Mass. and N.D.) received an F. Dick M. Carpenter et al., Inst. for Just., Policing for Profit: The Abuse of Civil Asset Forfeiture 22 (2d ed. Nov. 2015).

    [103].    Williams et al., supra note 10, at 96.

    [104].    See Sullivan v. Louisiana, 508 U.S. 275, 278 (1993); Green v. Young, 571 S.E.2d 135, 138 (Va. 2002); see also Va. Code Ann. § 19.2-258.1 (Repl. Vol. 2015) (requiring proof beyond a reasonable doubt for traffic infractions).

    [105].    Va. Code Ann. § 19.2-386.10 (Repl. Vol. 2015).

    [106].    Editorial, Law Enforcement: Inexcusable, supra note 1.

    [107].    See Crystal Owens, Law Enforcement Distributed Software Puts Personal Data at Risk, Report Alleges, Loudoun Times-Mirror (Oct. 3, 2014), http://www/loudountimes. com/news/article/law-enforcement_distributed_software_puts_personaldataat_riskreport_ alle898.”

    [108].    Id.; see Va. Const. art. VIII, § 8.

    [109].    Loudoun Co. Parents Have New Tool in Internet Safety, NBC Washington (Oct. 19, 2011), www.nbcwashington.com/news/local/Loudoun-Co-Parents-Have-New-Tool-in-In ternet-Safety-132205833.html.

    [110].    Owens, supra note 107.

    [111].    Dave Maass, ComputerCOP: The Dubious ‘Internet Safety Software’ That Hundreds of Police Agencies Have Distributed to Families, Elec. Frontier Found. (Oct. 1, 2014), https://www.eff.org/deeplinks/2014/09/computercop-dangerous-internet-safety-softw are-hundreds-police-agencies.

    [112].    Editorial, Law Enforcement: Inexcusable, supra note 1.

    [113].    Harry Minium Jr., Norfolk Police Chief’s Fund-Raising Is Investigated, Virginian-Pilot (Aug. 14, 2009), http://pilotonline.com/news/norfolk-police-chief-s-fund-raising-is-investigated/article_a274d4db-c5ac-5462-bd68-81b74ee4117e.html.

    [114].    Tom McLaughlin, Cash on Hand: Not Just Noblin, SoVaNow.com (Nov. 3, 2011), http://www.sovanow.com/index.php?/news/article/cash_on_hand_not_just_noblin/; Doug Ford, Noblin Pleads Guilty, Union Star (July 23, 2013), http://www.theunionstar.com/ article_88ac86ca-f3a6-11e2-aca5-0019bb2963f4.html.

    [115].    McLaughlin, supra note 114.

    [116].    Id.

    [117].    Tom McLaughlin, State Police Search Halifax County Sheriff’s Office, Vehicle, SoVaNow.com (Dec. 8, 2011), http://www.sovanow.com/index.php?/news/article/state_pol ice_search_sheriff_noblins_office_vehicle/.

    [118].    Id.

    [119].    Matt Sabo, Former Middlesex Sheriff Guilty on Two Bribery Counts, Daily Press (Aug. 15, 2012), http://articles.dailypress.com/2012-08-15/news/dp-nws-middlesex-abbott-trial-day5-wrap-0816-20120815_1_sheriff-guy-abbott-judge-paul-f-sheridan-bribery-convic tion.

    [120].    Matt Sabo, Judge Throws out 10 Felony Counts Against Former Middlesex Sheriff, Daily Press (Aug. 14, 2012), http://articles.dailypress.com/2012-08-14/news/dp-nws-middlesex-abbott-trial-day4-wrap-0815-20120814_1_sheriff-guy-abbott-middlesex-sheriff-judge-paul-f-sheridan.

    [121].    See, e.g., Debra McCown, Nicole Price Seeking GOP Nomination for Washington County Commonwealth’s Attorney, Bristol Herald Courier (May 23, 2011), http://www. tricities.com/news/article_a66d8ced-7377-548f-a0cf-3979ac50a9b7.html (noting that if elected, Price “would “take advantage of alternative revenue sources, such as forfeiture assets”); Vince Donaghue for Essex County Commonwealth’s Attorney, http://www.vince forca.com/issues.htm (pledging to use that office to “aggressively pursue asset forfeitures for Essex County”) (last visited March 7, 2016).

    [122].    Arthur L. Goff, Letter: Commonwealth’s Attorney Clarifies Asset Forfeiture, RappNews.com (Oct. 8, 2015), http://www.rappnews.com/2015/10/08/letter-commonweal ths-attorney-clarifies-asset-forfeiture/145090/.

    [123].    Preston Knight & Sally Voth, Sparks Fly in Final Week of Shenandoah County Prosecutor’s Race, Northern Virginia Daily (Nov. 3, 2011), http://www.nvdaily.com/new s/2011/11/sparks-fly-in-final-week-of-shenandoah-county-prosecutors-race/; Sally Voth, Commonwealth’s Attorney Candidates Face Off, Northern Virginia Daily (July 25, 2011), http://www.nvdaily.com/news/2011/07/commonwealths-attorney-candidates-face-of f/.

    [124].    See J. Mitchell Miller & Lance H. Selva, Drug Enforcement’s Double-Edged Sword: An Assessment of Asset Forfeiture Programs, 11 Just. Q. 313, 325 (1994).

    [125].    Brent D. Mast et al., Entrepreneurial Police and Drug Enforcement Policy, 104 Pub. Choice 285, 301 (2000).

    [126].    Id. at 301–03.

    [127].    William P. Nelson, Should the Ranch Go Free Because the Constable Blundered? Gaining Compliance with Search and Seizure Standards in the Age of Asset Forfeitures, 80 Cal. L. Rev. 1309, 1327 (1992).

    [128].    State Crime Comm’n, Asset Forfeiture (SB 684/HB 1287) 75 (Oct. 27, 2015), http://vscc.virginia.gov/Asset%20Forfeiture_FINAL-1.pdf. These figures do not include assets received through the federal government’s equitable sharing program, which total more than $107 million for the 2004–14 period. Id. at 71.

    [129].    Id. at 75.

    [130].    Dep’t of Crim. Just. Serv. Property Nos. 09-FS11205-01 and 09-FS11206-01 (data compiled by ACLU of Virginia through Freedom of Information Act requests).

    [131].    Dep’t of Crim. Just. Serv. Property Nos. 11-FS17801-01 and 12-FS31202-05 (data compiled by ACLU of Virginia through Freedom of Information Act requests).

    [132].    Va. State Crime Comm’n, Asset Forfeiture (SB 684/HB 1287) 75 (Oct. 27, 2015), http://vscc.virginia.gov/Asset%20Forfeiture_FINAL-1.pdf. Data for FY 2015 was collected through Sept. 8, 2015. Id.

    [133].    Editorial, Law Enforcement: Inexcusable, supra note 1.

    [134].    See Civil Asset Forfeiture Reform Act of 2000 (CAFRA), Pub. L. No. 106-185, 114 Stat. 202 (2000) (codified as amended in 20 U.S.C. § 981 (2012)).

    [135].    See, e.g., Eric Blumenson & Eva Nilsen, Policing for Profit: The Drug War’s Hidden Economic Agenda, 65 U. Chi. L. Rev. 35, 37 (1998) (noting the “extraordinary failure” of the war on drugs despite “record numbers of drug seizures, asset forfeitures, and prosecutions.”); Alison R. Solomon, Drugs and Money: How Successful Is the Seizure and Forfeiture Program at Raising Revenue and Distributing Proceeds?, 42 Emory L.J. 1149, 1188–89 (1993) (noting that “[t]he government does not appear to be any closer to winning the drug war with forfeiture than it was without it.”). As the first article, in particular, suggests, there is good reason to doubt that criminal prosecutions of drug offenses are a useful enterprise at all. The efficacy of the American war on drugs is beyond the scope of this article.

    [136].    Hyde, supra note 18, at 6.

    [137].    See Jim Nolan, New Drug-War Tack in Richmond, Rich. Times-Dispatch (June 11, 2007), http://www.richmond.com/news/article_4654e3f5-21d3-5bec-ac31-fe48b6ac33b4. html.

    [138].    See, e.g., N.M. Stat. Ann. § 31-27-4 (LexisNexis 2016) (providing that “[a] person’s property is subject to forfeiture if . . . the person is convicted by a criminal court of the offense”); 2015 Mont. Laws 421 (providing that “a court may not order forfeiture of real or personal property of any kind . . . unless: (a) the owner of the property has been convicted of a criminal offense”); Cal. Health & Safety Code § 11488.4(i)(3) (Deering 2016) (requiring that as a condition precedent to a forfeiture action, the subject of the forfeiture “be convicted in an underlying or related criminal action of an offense . . . [that] occurred within five years of the seizure” or within five years of the notice to seek forfeiture).

    [139].    U.S. Dep’t of Just., Overview of Asset Forfeiture Program, http://www.jus tice.gov/jmd/afp/ (last visited Mar. 7, 2016).

    [140].    Jenkins v. Commonwealth, 411 S.E.2d 841, 842 (Va. App. 1991) (internal citations omitted).

    [141].    H.B. 1287, Va. Gen. Assemb. (Reg. Sess. 2015); S.B. 684, Va. Gen. Assemb. (Reg. Sess. 2015). The Senate bill was withdrawn at the request of the patron.

    [142].    H.B. 1287, Va. Gen. Assemb. (Reg. Sess. 2015).

    [143].    Morgan White, Asset Forfeiture Reforms Pass the House, Free Lance-Star (Feb. 6, 2015), http://www.fredericksburg.com/news/local/asset-forfeiture-reforms-pass-the-hou se/article_b9a49cec-b595-5271-85f9-1444e3fba29e.html.

    [144].    Patrick Wilson, Senate Committee Kills Police Asset Forfeiture Bill, Virginian- Pilot (Feb. 18, 2015), http://www.pilotonline.com/news/government/politics/virginia/sen ate-committee-kills-police-asset-forfeiture-bill/article_77883941-f509-50cb-b222-74a6777a 4d62.html.

    [145].    Mike Maharrey, Virginia Bill Would Curb “Policing for Profit” via Asset Forfeiture, But Federal Loophole Remains, Tenth Amendment Ctr. (Nov. 30, 2015), http:// blog.tenthamendmentcenter.com/2015/11/virginia-bill-would-curb-policing-for-profit-via-as set-forfeiture-but-federal-loophole-remains/.

    [146].    H.B. 48, Va. Gen. Assemb. (Reg. Sess. 2016), https://lis.virginia.gov/cgi-bin/legp 604.exe?161+sum+HB48.

    [147].    S.B. 108, Va. Gen. Assemb. (Reg. Sess. 2016), https://lis.virginia.gov/cgi-bin/legp 604.exe?161+sum+SB108.

    [148].    S.B. 457, Va. Gen. Assemb. (Reg. Sess. 2016), http://lis.virginia.gov/cgi-bin/leg p 604.exe?161+vot+SV0398SB0457+SB0457.

    [149].    Robert O’Harrow Jr. et al., Asset Seizures Fuel Police Spending, Wash. Post (Oct. 11, 2014), http://www.washingtonpost.com/sf/investigative/2014/10/11/cash-seizures-fuel-police-spending/.

    [150].    Virginia State Police Dedicate State-of-the-Art Driver Training Complex, KBS (Sept. 28, 2012), http://www.kbsgc.com/news/virginia-state-police-dedicate-state-of-the-art-driver-training-complex/.

    [151].    Drugmaker Settlement Money, WHSV3 (Oct. 5, 2007), http://www.whsv.com/home /headlines/10264422.html.

    [152].    Kasey L. Higgins, Comment, “Shiver Me Timbers!” Civil Asset Forfeiture: Crime Deterrent or Incentive for the Government to Pillage and Plunder Property?, 4 Phoenix L. Rev. 771, 795 (2011).

    [153].    Hyde, supra note 18, at 29.

    [154].    42 Pa. Stat. and Cons. Stat. Ann. § 6801(h) (West 2006).

    [155].    See Frans J. von Kaenel, Missouri Ups the Ante in the Drug Forfeiture “Race to the Res, 72 Wash. U. L.Q. 1469, 1469 (1994) (noting that state and local law enforcement agencies are the principal beneficiaries of the “federal forfeiture bounty.”).

    [156].    U.S. Dep’t of Just., Guide to Equitable Sharing for State and Local Law Enforcement Agencies 6 (Apr. 2009).

    [157].    Id. at 1–2.

    [158].    Id. at 12.

    [159].    Michael E. Horowitz, Top Management and Performance Challenges Facing the Department of Justice—2013, Office of the Inspector General (Dec. 11, 2013), http:// www.justice.gov/oig/challenges/2013.htm.

    [160].    Mo. Ann. Stat. § 513.647(1) (West 1994).

    [161].    Von Kaehel, supra note 155, at 1482–83.

    [162].    Kyla Dunn, Reining in Forfeiture: Common Sense Reform in the War on Drugs, PBS, http://www.pbs.org/wgbh/pages/frontline/shows/drugs/special/forfeiture.html (last visited Mar. 7, 2016).

    [163].    Press Release, American Civil Liberties Union, MO’s Asset Forfeiture Reform Bill Closes $32 Million Loophole That Let Police Divert Education Funds (May 17, 2001), https://www.aclu.org/technology-and-liberty/mos-asset-forfeiture-reform-bill-closes-32-million-loophole-let-police-divert.

    [164].    Williams et al., supra note 10, at 71.

    [165].    Council of the Dist. of Columbia Comm. on the Judiciary and Pub. Safety, Rep. on Bill 20–48, “Civil Asset Forfeiture Act of 2014,” at 24 (Nov. 12, 2014).

    [166].    Id.

    [167].    Christopher Ingraham, The Justice Department Just Shut Down a Huge Asset Forfeiture Program, Wash. Post (Dec. 23, 2015), https://www.washingtonpost.com/news/wonk /wp/2015/12/23/the-feds-just-shut-down-a-huge-program-that-lets-cops-take-your-stuff-and -keep-it/.

    [168].    Letter from M. Kendall Day, Chief of the Asset Forfeiture and Money Laundering Section at the U.S. Dep’t of Just. to State, Local, and Tribal Law Enforcement Agencies (Dec. 21, 2015), http://www.policeforum.org/assets/docs/Web_Uploads/doj%20asset%20for feiture%20letter.pdf.

    [169].    See Va. Code Ann. § 19.2-386.14 (Repl. Vol. 2015).

    [170].    Id. § 19.2-386.4 (Repl. Vol. 2015); Va. Dep’t of Crim. Just. Servs., Forfeited Asset Sharing Program Manual 2 (2015), www.dcjs.virginia.gov/fasp/faspManual.pdf. By regulation, DCJS requires each agency to submit a copy of the court order, a petition for in-kind property, a list of costs incurred to manage seized assets, and a cashier’s check or money order payable to the state treasury for the forfeited assets. 6 Va. Admin. Code § 20-150-40 (2014).

    [171].    See H.B. 771, Va. Gen. Assemb. (Reg. Sess. 2016) (requiring DCJS to publish an annual report detailing the distribution of forfeiture assets). The governor signed H.B. 771 into law on March 1, 2016; it will take effect on July 1, 2016. Id.

    [172].    Frank Green, Va. State Crime Commission Declines to Support Legislation on Asset Seizures, Rich. Times-Dispatch (Dec. 3, 2015, 10:30 PM), http://www.richmond.com /news/virginia/government-politics/article_b41c2a22-5093-57d0-b0c5-fc06f7b32aa1.html; see also Va. State Crime Comm’n, Policy Options and Recommendations 9 (Dec. 3, 2015), http://vscc.virginia.gov/December%20Policy%20Options%20Final-1.pdf.

    [173].    H.B. 771, Va. Gen. Assemb. (Reg. Sess. 2016).

    [174].    Tamara R. Piety, Comment, Scorched Earth: How the Expansion of Civil Forfeiture Doctrine Has Laid Waste to Due Process, 45 U. Miami L. Rev. 911, 920 (1991).

    [175].    Va. Code Ann. § 19.2-386.10 (2015).

    [176].    Lamar Co., LLC v. Bd. of Zoning Appeals, 620 S.E.2d 753, 756 n.5 (2005).

    [177].    Virginia Model Jury Instructions, Instruction No. 3.110 (Matthew Bender & Company, Inc. 2016).

    [178].    Williams et al., supra note 10, at 22; Cal. Health & Safety Code § 11488.4(i)(4) (West 1994). In July 2014, Representative Tim Walberg of Minnesota and Senator Rand Paul of Kentucky introduced separate bills in the House and Senate that would, among other things, increase the burden of proof in federal asset forfeiture cases from a preponderance of the evidence to clear and convincing evidence. Civil Asset Forfeiture Reform Act of 2014, H.R. 5212, 113th Cong. (2nd Sess. 2014); Fifth Amendment Integrity Restoration Act of 2014, S. 2644, 113th Cong. (2nd Sess. 2014). In January 2016, Senator Bill Carrico introduced a bill to raise the burden of proof in Virginia asset forfeiture cases to clear and convincing evidence. S.B. 457, Va. Gen. Assemb. (Reg. Sess. 2016).

    [179].    Charles Herman Kinnane, A First Book on Anglo-American Law 562 (2d ed. 1952).

    [180].    Robert O’Harrow, Jr. et al., They Fought the Law. Who Won?, Wash. Post (Sept. 8, 2014), http://www.washingtonpost.com/sf/investigative/2014/09/08/they-fought-the-law-wh o-won/.

    [181].    Id.

    [182].    Id.

    [183].    Id.

    [184].    Va. Code Ann. § 19.2-386.10(A) (2015); see Williams et al., supra note 10, at 23.

    [185].    Delegate Mark Cole remarked, “I just think it’s fundamentally un-American that the government can seize your property without ever having to prove that you are in collusion to criminal acts.” Jeff Branscome, Cole Bill Puts Limits on Police Seizures, Free Lance-Star (Oct. 25, 2014), http://www.fredericksburg.com/news/cole-bill-puts-limits-on-police-seizur es/article_4a6687f4-bd64-5919-8bb9-e074f274f320.html.

Glimpses of Marshall in the Military

Glimpses of Marshall in the Military

Kevin C. Walsh, Glimpses of Marshall in the Military, 50 U. Rich. L. Rev. Online 69 (2016).

Click here to download .pdf


Kevin C. Walsh *

+++Before President John Adams appointed him as Chief Justice of the United States in 1801, John Marshall was a soldier, a state legislator, a federal legislator, an envoy to France, and the Secretary of State.[1] He also maintained a thriving practice in Virginia and federal courts, occasionally teaming up with political rival and personal friend Patrick Henry. Forty-five years old at the time of his appointment to the Supreme Court, Marshall had been serving his state and his country for a quarter century before he took judicial office.

+++Marshall is an exemplar of professional excellence for all lawyers and judges. But one looking for life lessons in the law from the life of John Marshall should not neglect his time as a soldier, before he became a lawyer.

+++“From my infancy I was destined for the bar,” Marshall would write later in his life, “but the contest between the mother country & her colonies drew me from my studies & my Father from the superintendence of them; & in September 1775, I entered into the service as a subaltern.”[2] Beginning in a Fauquier County militia, continuing through with the Culpeper Minutemen, and then serving as an officer in the Continental Army, John Marshall spent the better part of five years in active military service. This period, from the age of nineteen to twenty-four, formed Marshall’s outlook in ways that rippled outward through his entire life.[3]

+++It was in the Continental Army, Marshall later wrote, “associated with brave men from different states who were risking life and every thing valuable in a common cause believed by all to be most precious . . . where I was confirmed in the habit of considering America as my country, and Congress as my government.”[4] Marshall himself and his later biographers have drawn a direct connection between his army experience and his political outlook. “My immediate entrance into the state legislature [after serving in the military],” Marshall wrote, “opened to my view the causes which had been chiefly instrumental in augmenting [the] sufferings [of the army], and the general tendency of state politics convinced me that no safe and permanent remedy could be found but in a more efficient and better organized general government.”[5] Less appreciated than the link between Marshall’s military experience and his political outlook, but no less important, is the link between Marshall the soldier and Marshall the lawyer. The influence of Marshall’s military experience on his formation as a lawyer, however, was pervasive.

+++We have already seen how Marshall described the hostilities with “the mother country” as breaking off the studies he took under the direction of his father. But even before joining the Culpeper Minutemen in September 1775, Marshall had been training for the military to the exclusion of his legal studies. “About the time I entered my eighteenth year [in September 1773],” Marshall would later write,

the controversy between Great Britain and her colonies had assumed so serious an aspect as almost to monopolize the attention of the old and the young. I engaged in it with all the zeal and enthusiasm which belonged to my age; and devoted more time to learning the first rudiments of military exercise in an Independent company of the gentlemen of the county, to training a militia company in the neighbourhood, and to the political essays of the day, than to the classics or to Blackstone.[6]

+++Marshall’s only formal legal education—a few months of law lectures by George Wythe at the College of William and Mary—took place in early 1780, while he was still in the Continental Army, but on furlough. He received his law license, under the signature of then-Governor Thomas Jefferson, in August 1780. But Marshall could not begin his law practice at that time because the courts in Virginia were closed due to British forces.

+++When Marshall did begin his practice, his army experience was a boon for business. “My extensive acquaintance in the army was of great service to me,” Marshall later wrote.[7] “My numerous military friends, who were dispersed over the state, took great interest in my favour, and I was more successful than I had reason to expect.”[8]

+++Before commencing his private practice, and even before he was licensed as a lawyer, however, Marshall had already served as a legal professional of sorts in the military. In November 1777, Marshall was appointed Deputy Judge Advocate General (“DJAG”). He served in that role for almost a year (until August 1778, it seems).

+++As a DJAG, Marshall would have assisted with court martials, transcribed the records of proceedings, and performed various ministerial and notarial functions. He would have had to possess detailed knowledge of military law and procedure. And he would have had to have a hardy physical constitution. For during the winter of 1777 into 1778, when Marshall served as DJAG, he was with General Washington’s Main Army at Valley Forge.[9]

+++One interested in qualities that contribute to excellence in the law might wonder why Marshall was tapped to be a DJAG despite his lack of formal legal training or experience. (This was highly unusual, as the JAG and most DJAGs had prior practice experience as lawyers.) From the accounts of his contemporaries, three qualities stand out: intelligence, judgment, and temperament.

+++His fellow officers would have seen Marshall’s legal intelligence from his comportment in court martials that he had sat on as an officer. (The officers sitting on a court martial were the functional equivalent of judge and jury, and they relied on the JAG or DJAG for technical legal advice in addition to the facts of the case.) Intellectual horsepower would have been a necessary quality for a DJAG in a professional military like the Continental Army that followed the rules and procedures of the detailed military law set forth in the Articles of War.

+++Marshall’s sound judgment—even at this young age—was widely remarked. According to one account,

all those, who intimately knew him, affirmed, that his capacity was held in such estimation by many of his brother officers, that in many disputes of a certain description he was constantly chosen arbiter; and that officers, irritated by differences or animated by debate, often submitted the contested points to his judgment, which being given in writing, and accompanied, as it commonly was, by sound reasons in support of his decision, obtained general acquiescence.[10]

+++Marshall’s temper—even-keeled, content, unruffled—was perhaps the most conspicuously commented-on quality of his character. The shining value of this character trait emerges in clear relief when set against the bleak backdrop of the army encampment at Valley Forge. In the words of nineteenth-century chronicler Henry Howe, John Marshall

was one of that body of men, never surpassed in the history of the world, who, unpaid, unclothed, unfed, tracked the snows of Valley Forge with the blood of their footsteps in the rigorous winter of 1778, and yet turned not their faces from their country in resentment, or from their enemies in fear.[11]

+++This astounding endurance required cultivation and effort. It also took a certain kind of person not only to make it through, but also to carry others with them, as Marshall did for the men in his command. For in addition to serving as DJAG, Marshall was Acting Company Commander for his unit at Valley Forge. Here is Marshall’s Valley Forge cabin mate, Philip Slaughter, describing Marshall’s deportment during that severe and trying time:

He was the best-tempered man I ever knew. During his sufferings at Valley Forge, nothing discouraged, nothing disturbed him. If he had [only] bread to eat, it was just as well; if only meat, it made no difference. If any of the officers murmured at their deprivations, he would shame them by good-natured raillery, or encourage them by his own exuberance of spirits. He was an excellent companion, and idolized by the soldiers and his brother officers, whose gloomy hours were enlivened by his inexhaustible fund of anecdote.[12]

+++Is it any surprise that Marshall’s company had a higher proportion of men fit to serve than prevailed in the army as a whole? And is not this kind of success—gutting it out and emerging with men still fit to fight, sometimes by means as simple as daily good temper and a proto-Lincolnian penchant for anecdote—exactly what the military situation demanded?

* * *

+++We glimpse in these sketches of Marshall in the military some of the same qualities that carried him through the rest of his personal and professional life. While Marshall is often recognized and praised for his outwardly, obvious achievements, we should not ignore the internal excellences that contributed to them and constituted him. When we attend to those, we see a different kind of greatness than is more commonly recognized as such. We see virtue for the ages, worthy of emulation today.


*   Professor of Law, University of Richmond School of Law. This essay is adapted from a CLE presentation on legal professionalism co-sponsored by the James Madison Chapter of Phi Delta Phi, the Moot Court Board, the Trial Advocacy Board, and the John Marshall Foundation. The author thanks those organizations for their sponsorship of ?that event dedicated to the Great Chief Justice.

        [1].    The best single-volume biographies of John Marshall published in the past two decades are Jean Edward Smith, John Marshall: Definer of a Nation (1996) and R. Kent Newmyer, John Marshall and the Heroic Age of the Supreme Court (2001).

        [2].    Letter from John Marshall to Joseph Delaplaine (Mar. 22, 1818), in VIII The Papers of John Marshall 187 (Charles F. Hobson, ed., 1995), http://rotunda.upress.virg inia.edu/founders/default.xqy?keys=JNML-chron-1810-1818-03-22-1.

        [3].    The most comprehensive account of John Marshall’s time in the military is Keith Marshall Jones III, “Congress as My Government”: Chief Justice John Marshall in the American Revolution (1775–1781) (2008).

        [4].    “Autobiographical Sketch,” Letter from John Marshall to Joseph Story (July 25, 1827), in XI The Papers of John Marshall 38 (Charles F. Hobson, ed., 2002), http://rot unda.upress.virginia.edu/founders/JNML-01-11-02-0017.

        [5].    Id.

        [6].    Id. at 36.

        [7].    Id. at 37.

        [8].    Id.

        [9].    For an account of Marshall’s experiences and responsibilities as a DJAG, see Jones, supra note 3, at 127–37.

      [10].    Joseph Story, Chief Justice Marshall’s Public Life and Services, 26 N. Am. Rev. 1, 8 (1828). On Story’s authorship of this review, see Newmyer, supra note 1, at 469.

      [11].    Henry Howe, Historical Collections of Virginia 263 (1852).

      [12].    Edgar Aldrich, John Marshall as a Soldier, in Proceedings of the Bar Association of the State of New Hampshire at Its Celebration of John Marshall Day 323, 331 (1901). In this version of the quotation from Slaughter’s diary, I have substituted “only” bread for “no” bread, which is how the diary entry is more often quoted. See, e.g., Address of Mr. Justice Mitchell, in 1 John Marshall: Life, Character and Judicial Services 452, 458 (John F. Dillon, ed., 1903). Unfortunately, the original diary appears no longer to be available. See Philip Slaughter, A History of St. Mark’s Parish, Culpeper County, Virginia 108 (1877) (“Capt. Slaughter kept a diary of his campaigns, which was lost in the wreck of so many fine libraries in the late war.”).

Practical Tips for Placing and Publishing Your First Law Review Article

Practical Tips for Placing and Publishing Your First Law Review Article

Robert Luther III, Practical Tips for Placing and Publishing Your First Law Review Article, 50 U. Rich. L. Rev. Online 63 (2016).

Click here to download .pdf

Robert Luther III *

+++Many law reviews are only open to the top 10% of the class or to students who excel in a writing competition.[1] While a high percentage of law schools now have at least one journal in addition to the law review, the reality is that well over half of the students enrolled in law school today do not have the opportunity to serve as a law review or journal staff member. Without that experience, those students-turned-lawyers who wish to publish legal scholarship after graduation are left in the dark about where to begin the process. I was one of those individuals, but over the last eight years, I have regularly published legal scholarship. Recently, my former students and other young attorneys have started asking me for advice. This essay—directed at emerging scholars who seek to publish their scholarship shortly after entering the legal profession—is a compilation of the advice I have shared.

+++Whether you are writing an appellate brief or promoting a potential piece of legal scholarship, proper presentation can be a difference-maker. By following the ten steps below, you may nudge law journal editors in the right direction and maximize the placement of your law journal article submission.

+++(1)  The law journal submission process is no different than everything else associated with law school and legal practice. It requires thoughtful preparation. But you should not fear this extra effort because you have invested hundreds of hours into this major scholarly work and owe it to yourself to do the best you can to place it in a journal commensurate with the effort you have invested. Failure to properly prepare will result in an unsatisfying placement.

+++(2)  Now that your article is complete, you need to find a suitable journal for it. But where can you access a complete list of law journals? Washington & Lee Law School’s website provides a one-stop list of every law journal, accessible here: http://lawlib.wlu.edu/LJ/. At the moment, there are about 1000 law journals in the United States, and new journals are being added by law schools every year. Despite the submission-to-publication ratio mentioned above, in my experience working with students and young lawyers, original and well-written articles stand a reasonably high probability of receiving an offer of publication. While some people are happy simply to receive any offer, in my opinion, an “outstanding” placement for your first article would be anywhere upwards from 250; any offer upwards of 400 would be “excellent”; and any offer upwards of 500 would “probably be worth accepting barring a reasonable basis to believe it will place higher in the future.” Obviously, any offer of publication is a thrill and is humbling, but if you are not entirely satisfied with your offers, contact a former professor or someone with writing experience who you trust, and the areas in need of improvement will be identified. The best times of year to submit an article are August/September and February.

+++(3)  Your first publication is your most important one (at least at the beginning of your career). In my experience, journal selection committees evaluate scholarship largely (but not exclusively) on the merits of the article. When a few articles are competing for a final spot, it is not uncommon for editors to look beyond the face of the article to the author’s publication history and practice experience prior to rendering a decision. (If external factors were not likely to be considered, why do most law journals require authors to submit their CV?). Consequently, the CV you submit must be clean and polished as if you are submitting it to an employer. Describe your law practice and list all serious, previously published work and any speaking engagements where you have demonstrated expertise in the area of law your submission concerns.

+++(4)  In his seminal book on the subject of publishing legal scholarship, Professor Eugene Volokh suggests that law students should consider publishing outside their home school and that journals “should adopt a policy of advising their students to send their article out for competitive publication.”[2] While I wholeheartedly agree that aspiring authors should seek to publish outside their home school, in my opinion, students should avoid publishing their work in any journal while they are still students—unless the journal is willing to publish the work as an article rather than as a student note or a comment. You have probably never heard this advice before, and it may sound counter-intuitive. But I have come to believe this as true because, in my experience, judges, scholars, and attorneys are less likely to cite student-authored scholarship than they are to cite attorney-authored scholarship. As a corollary, you are likely to secure a better placement as an attorney. Think about it: if the work was strong enough to be accepted by a journal while you were a student, it is surely strong enough to be accepted by a journal when you are an attorney. But at that juncture, it will no longer carry the “scarlet letter” of student-authorship. In this context, a little patience may help your work make a longer-lasting impact.

+++That said, I agree with Professor Volokh that it tends to be better to publish in journals outside of your law school because publishing elsewhere extinguishes any cloud of favoritism that may hang over your article otherwise. In other words, if you are a graduate of Doe Law School and publish your work in the Doe Law Review before you graduate, the reader will know it was one of the better submissions from the students/law review staff at Doe Law School, but it is not likely to have much staying power because student-authored work is rarely cited (and even when student-authored work does provide material worth citing, readers will often try to find a more credible source to cite because of the long-standing bias against student-authored scholarship). Even if you publish your article in the Doe Law Review after you graduate, the reader may suspect that someone did you a favor, and that may undercut the credibility of your article.[3]

+++(5)  Apply to a range of journal ranks—a few top, many in the middle, some at the bottom. You can frequently “trade-up” if you receive an offer from a journal that is not as highly ranked as you might wish. How do you “trade-up?” In the past, if I have received a reasonably strong offer but would prefer to place it somewhere slightly higher (or more geographically appropriate if I am writing on state law or the law of a specific federal circuit), I may contact my ideal destination and inform them of my offer and ask them to conduct an “expedited review” along with my promise that if they accept my piece, I will sign a contract with them. This is a common and accepted practice, but I would discourage you from contacting more than one journal with this offer. And I would, of course, encourage you to always keep your word.

+++(6)  Titles are important. Actually, they are really important. So choose a title that implies you are a serious thinker, not a corny, witty, or silly title that no judge or attorney is going to consider the merits of, let alone cite in an opinion or brief.[4] “Good legal writers try to make their titles short, straightforward, and punchy.”[5] Although I have not always followed this advice, I generally agree with Professor Garner, with one caveat: Shorter titles tend to be more general. You want to avoid a title so short and general that it suggests a proposition broader than your article reasonably attempts to prove.

+++(7)  What should you attach along with the draft of your article? In addition to your article and your CV, you must decide whether you wish to attach a cover letter or whether you intend to paste a reduced version of a formal cover letter in the body of the e-mail addressed to the submissions editor. Your goal is to attract the reader’s attention. That might not happen if they have to open a cover letter, so I suggest you craft a succinct note to the editor and paste it in the body of your e-mail. However, if you are submitting to an elite journal (say top fifty), a formal letter on letterhead might be more appropriate because the higher ranked journals frequently consider articles by (often large) committees. Faculty input may even be solicited.

+++If you submit a letter on letterhead, be sure to obtain your firm or judge’s approval first. You may wish to create your own personal letterhead independent of your professional affiliation. There is nothing unethical about identifying your professional affiliation in your letter since you are merely stating a fact. But if you are working for a judge or a government agency, you need to consider speaking to your supervisor about any restrictions, particularly if you are writing on an area where you are actively practicing. If you are clerking for a judge, do not reveal confidences about cases you have worked on as a law clerk. If you are working for the government, do not take a position contrary to your agency while you are still employed by that agency.

+++(8)  Never make representations or assertions that you cannot support. This seems obvious, but it is an easy rule to overlook. For example, if you assert that “this is the first work of legal scholarship to argue X,” you need to have the research to prove it because you may be asked to do so at some point in the future. As Ron Swanson reminds Tom Haverford in the series finale of Parks and Recreation, “[w]hatever you write is going to have your name on it,” and credibility is equally as essential to an author as it is to a lawyer.

+++(9)  Consider coauthoring. On one hand, coauthoring has the possibility of complicating a process that most of us have historically been plenty comfortable with handling on our own. Yet I believe there are at least two particularly strong reasons to consider coauthoring with a professor or perhaps a colleague a few years your senior. First, the writing process at a law firm or as a law clerk is a collaborative process. No matter where you are employed, unless you are a solo practitioner, when you enter practice someone is going to be reviewing your written work. Second, you can learn a great deal about substantive law and the practice of law by writing with someone whom you respect who has been in practice for a few years. In reflecting on my first publication (and a number of drafts I have read from students over the last few years) I have found that young authors are frequently able to prepare about 80% of a draft, and then they hit a wall. While they are happy with what they have produced, they know it is not complete or thorough enough for publication. In some situations, a mentor may help you battle through the final stages of the writing process to the point where it is still ethical for you to claim sole authorship. Other times, it may be appropriate to offer your mentor coauthorship credit, or he/she may request it. Depending on your mentor’s reputation, their affiliation with your work may actually improve its placement possibilities. Trust your instincts, but keep your options open. Coauthoring articles can be an extremely rewarding and enjoyable experience.[6]

+++(10) Do not be afraid to ask a contact to make certain your article is reviewed by the selection committee. Journals may receive up to 2000 submissions for approximately twenty slots. Never ask a journal member to explicitly accept your submission, but to the best of my knowledge there is nothing unethical about asking a journal member to make certain your submission is reviewed.

* * *

+++Remember, the same best practices that apply when you are writing an appellate brief to be filed in court apply when you are writing a scholarly article. Appellate briefs are carefully crafted for the purpose of making it easy for the court to rule in your client’s favor. A similar logic applies when you draft an article. The easier you make it for the journal to select your submission, the more likely it is that you will enjoy the success of placing it.


*   Counsel, Senate Committee on the Judiciary. J.D., Ohio Northern University Pettit College of Law, 2006; Hampden-Sydney College, magna cum laude, 2003. The author has published in law journals on fourteen occasions and the views expressed herein are solely his own.

        [1].    Menachem Wecker, Law Review Leads to Legal Jobs, Recruiters Say, U.S. News (Jan. 19, 2012, 9:00 AM), http://www.usnews.com/education/best-graduate-schools/top-law-schools/articles/2012/01/19/law-review-leads-to-legal-jobs-recruiters-say.

        [2].    Eugene Volokh, Academic Legal Writing 261 (4th ed. 2010).

        [3].    Id. (“People who see a home-school Note publication on a resume may assume the student was on the journal, and discount the publication because journals tend to publish their own students’ work with less quality screening than they use for outside work. But when people see a publication in a journal at a different school, they’ll realize that the article was competitively selected, and might think more highly of it.”); see also, Albert H. Yoon, Editorial Bias in Legal Academia, 5 J. Legal Analysis 309, 330–36 (2013) (reviewing empirical data and concluding that law reviews are systematically biased in favor of publishing articles by their own faculty, the bias in favor of publishing the school’s own faculty results in lower quality articles, and that faculty tend to publish their lower quality articles in their own school’s law reviews).

        [4].    See, e.g., Orin S. Kerr, A Law Review Title Pun That Has Run Its Course, Wash. Post (May 6, 2014), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/05 /06/a-law-review-title-pun-that-has-run-its-course/ (identifying seven law review publications, mostly student notes, from the last two years drawing on the feline pun implicit in the name of the seminal Fourth Amendment case, Katz v. United States, 389 U.S. 347 (1967)).

        [5].    Bryan A. Garner, The Elements of Legal Style 75 (2nd ed. 2002).

        [6].    See Nancy Leong, Best Practices for Coauthoring Legal Scholarship, PrawfsBlawg (May 18, 2012, 2:09 PM), http://prawfsblawg.blogs.com/prawfsblawg/2012 /05/best-practices-for-coauthoring-legal-scholarship.html (discussing the benefits of and best practices for coauthoring legal scholarship).

Filling Federal Court Vacancies in a Presidential Election Year

Filling Federal Court Vacancies in a Presidential Election Year

Carl Tobias, Filling Federal Court Vacancies in a Presidential Election Year, 50 U. Rich. L. Rev. Online 35 (2016)

Click here to download .pdf


Carl Tobias *

+++Scholars and politicians who closely track the federal judicial selection process appreciate that confirmations slow and ultimately halt over presidential election years, a phenomenon which has greater salience in a chief executive’s last administration. That policy comprises numerous strands. Important are the conventions—which have permitted the approval of many superb, uncontroversial district court nominees routinely through the fall of most presidential election years and in certain lame duck sessions—while allowing a number of capable, mainstream appellate nominees to manage consideration until the August Recess. The traditions derive from respect for voters’ preferences expressed in the elections, the incoming chief executive, who should have the opportunity to fill vacant judicial posts, and new senators, who must discharge their constitutional responsibility to provide advice and consent on selections.

+++Nevertheless, GOP members have not always followed these customs and other venerable conventions throughout President Barack Obama’s years. For instance, Republicans automatically hold over Judiciary Committee votes on able, moderate candidates for a week, and the GOP leadership denied talented, centrist appeals court nominees’ final ballots after mid-June 2012. Ever since winning the upper chamber in November 2014, Republicans have incessantly promised to duly effectuate “regular order” again.[1] However, the Senate confirmed merely eleven jurists in 2015, which is the fewest since Dwight Eisenhower was President.[2] Because the United States in fact confronts seventy-one openings (thirty-two “judicial emergencies”), which plainly undermine the delivery of justice, and the GOP will keep stalling and ignoring customs applied over presidential election years, 2016 court appointments merit scrutiny.

+++The first section of this article canvasses selection in Obama’s tenure, ascertaining that Republicans cooperated little and contravened numerous traditions, especially after the party captured a majority. Thus, section two analyzes why the GOP did not collaborate and the consequences. Because that obstruction—which undercuts justice and regard for the coequal branches of government—will actually continue across 2016, the piece surveys devices, which could rectify or ameliorate those critical impacts this presidential election year.

I. Judicial Selection in the Obama Administration

A.   The First Six Years

+++Selection proceeded well Obama’s first term and a half when Democrats controlled the Senate, particularly in contrast to 2015. He aggressively consulted home state politicians, seeking their guidance and requesting proposals of fine, mainstream candidates, advice which Obama usually followed.[3] These endeavors promote cooperation, as senators defer to colleagues in jurisdictions with vacancies because of mutual respect, and they can and do halt processing by not returning blue slips—a tradition which permits consideration to advance. Despite solicitous, persistent White House cultivation of all lawmakers, many failed to coordinate, slowly adopting processes or submitting prospects, while some have not even tendered picks.[4]

+++Republicans cooperated with the Democratic majority in swiftly arranging committee hearings at which five nominees testified every three weeks, carefully questioning them in the panel sessions and effectively posing later written queries when indicated.[5] However, the GOP automatically held over discussions and committee votes one week for all choices recommended but fifteen of 350 excellent, moderate nominees.[6]

+++Republicans slowly agreed to most possibilities’ chamber debates, if warranted, and yes or no ballots, requiring exceptional, consensus selections to languish across months until Democrats petitioned for cloture.[7] Republicans also demanded roll call votes and numerous debate minutes yet used virtually none for superior, uncontroversial prospects, many of whom captured appointment without opposition, thereby needlessly consuming precious Senate floor time.[8] Those procedures stalled confirmations and meant openings remained close to ninety for much of the half decade following August 2009, numbers that were unprecedented.[9]

+++In the 2012 presidential election year, these strategies continued and increased.[10] The GOP regularly held over committee discussions and ballots for one week, rejected prompt floor vote concords, and mandated roll call ballots for accomplished, noncontro-versial designees who easily secured confirmation, while final appellate votes ceased in mid-June.[11] With Obama’s re-election, Democrats hoped that Republicans would actually enhance collaboration, but they did not, and this recalcitrance culminated in June 2013 when he proffered three well qualified, mainstream, diverse recommendations for the U.S. Court of Appeals for the District of Columbia Circuit, the nation’s second most important court.[12] The GOP refused each a floor ballot, and frustration with incessant obstruction provoked Democrats to cautiously exercise the “nuclear option,” which limited filibusters.[13] The measure’s November 2013 implementation, which Republicans asserted violated tradition, enabled the 113th Congress to approve 134 jurists, including twenty-seven persons in the 2014 lame duck session.[14] After that mechanism’s explosion, Republicans forced Democrats to invoke cloture on all nominees until 2015.[15]

B.   Selection in 2015

+++Once the GOP became the majority,[16] this lack of cooperation persisted and eclipsed that when Republicans were the minority. The leadership has constantly said that it would dutifully restore the world’s greatest deliberative body to regular order.[17] Members duly recited this litany to describe reinstitution of the normal processes which ostensibly governed the chamber before Democrats subverted them. Early in January 2015, Mitch McConnell (R-Ky.), the new Majority Leader, proclaimed: “We need to return to regular order,”[18] and he directly reiterated that phrase over subsequent months.[19] Charles Grassley (R-Iowa), the Judiciary Committee Chair, propounded analogous views. Emblematic was his January 21 statement that the Committee would deploy regular order in assessing judicial nominees.[20] Despite many pledges, the GOP has failed to expeditiously offer suggestions for presidential review, committee hearings and ballots or chamber floor debates, when required, and final votes.

1.   The District Court Process

a.   The Nomination Process

+++Obama has continued to assiduously consult, seeking proposals from home state officers about well qualified, consensus picks, which he normally used by selecting them, as moderation and competence are Obama district possibilities’ hallmarks.[21] Notwithstanding his insistent cultivation of all legislators, many Republicans have declined to coordinate, slowly establishing procedures or forwarding candidates, and a few have chosen none.[22] Thirty-six in forty-three (eight of nine appeals courts) openings lacking nominees and eighteen in twenty-one vacancies without them—which the U.S. Courts Administrative Office (“AO”) dutifully classifies emergencies—are currently in jurisdictions that at least one GOP senator represents.[23]

+++The clearest example is Texas, which has the most U.S. openings, notwithstanding approval of three excellent, uncontroversial jurists by May 2015. It presently faces two circuit and seven district court vacancies, all lacking nominees with eight comprising emergencies, and for many of which the recommendation process has yet to begin or has stalled.[24] Texas is not alone. Most crucial are Pennsylvania’s two empty Third Circuit seats and Western District openings in three of ten positions without nominees for multiple years,[25] while Georgia had two unfilled Eleventh Circuit slots and the Northern District had a third of posts vacant several years before politicians reached a “deal” with Obama to fill them.[26]

b.   The Confirmation Process

i.    Judiciary Committee Hearings

+++Similar, but exacerbated, problems infect confirmations. Grassley set the first hearing on January 21, 2015, promising he would analyze strong, mainstream nominees under regular order.[27] The Chair alleged the public should expect no “discernible difference” between how the panel operates with GOP rather than Democratic leadership, suggesting it would provide hearings every few weeks that Congress was in session, a policy ex-Chair Patrick Leahy (D-Vt.) ably instituted the last three Congresses and Grassley, the Ranking Member over the 112th and 113th, helped effectuate.[28] Disparities rapidly materialized, however. For instance, the next hearing occurred seven weeks after the first and the third eight weeks later, while the fourth and fifth came in June and July with the latest on September 30, October 21, and December 9.[29] The March hearing was conducted for a pair of nominees and the summer hearings for three each, in comparison with the five Leahy typically evaluated.[30]

+++In the April 20 debate on a Texas re-nominee, Grassley proclaimed Republicans matched the Democratically led Senate over President George W. Bush’s seventh year,[31] because at the identical juncture, the “committee had held three nominee hearings for a total of 10 judges,” while the panel “already held 4 nomination hearings” [on] 6 judges.[32] Harry Reid (D-Nev.), the Minority Leader, countered that the 2015 panel was “not having any hearings to speak of;” by June 8, 2007, “Democrats confirmed 18 judges, including 3 circuit court judges.”[33]

ii.   Judiciary Committee Discussions and Votes

+++Despite Grassley’s pledges, which he repeated at the February 12 meeting, the Chair held over votes from that session until February 26,[34] retaining a practice the GOP used during Obama’s first term and a half.[35] Those delayed were five superb, moderate U.S. Court of Federal Claims re-nominees whom the panel duly reported last year on unopposed voice votes[36] and four superior, consensus district re-nominees, two for emergencies, with powerful support of the Republican party home state panel members: John Cornyn, Ted Cruz, Orrin Hatch, and Mike Lee.[37]

iii.  Floor Debates and Votes

+++McConnell concurred on few quick nominee debates and votes when he was the Minority Leader Obama’s initial six years,[38] thus requiring Democrats to pursue cloture on numerous selections and eventually change filibusters.[39] However, McConnell pledged additional cooperation in his new role as Majority Leader, while scheduling nominee floor debates and chamber ballots afforded a constructive opportunity for respecting this promise.[40]

+++Nevertheless, McConnell actually set no fast consideration on the four districts, and the five Claims Court, re-nominees whom the panel approved with February 26 voice votes. A month later, he finally convened a lone district re-nominee’s April 13 floor debate and ballot.[41] This seemingly treated the contention by Leahy, the Ranking Member, that the absence of 2015 nominee votes contravened precedent and contrasted with how Democrats scrutinized Bush picks.[42] He asserted that the Senate’s constitutional responsibility to give “advice and consent” does not end with a presidency’s final two years and carefully urged swift authorization of the Judicial Conference proposal for seventy-three judgeships to provide the bench resources for delivering justice.[43] Leahy responded to Grassley’s idea that eleven nominees appointed in the 2014 lame duck session must “count towards confirmations this year” by arguing that prior “Congresses have always confirmed consensus nominees” ahead of lengthy recesses, maintaining “Democrats were only forced to do so because Republican obstruction had left judicial vacancies close to [ninety across Obama’s] first six years.”[44]

+++McConnell failed to publicly say when the other three district or five Court of Federal Claims aspirants would have votes. Nonetheless, he confirmed one trial level re-nominee on April 20, prompting Leahy’s contention this was only the second appointment, which clearly proved that GOP “delay and obstruction” revealed the earlier Obama years was continuing, and his denunciation of the “slow trickle,” which harms courts and the public.[45] When the Senate Republican leader denied rapid ballots for the last two district re-nominees, Reid compared the pair of jurists the GOP approved the entire year with sixteen over 2007, while he mentioned twenty nominees were pending in committee, emergencies doubled this year, and Republicans’ disregard of their constitutional responsibility was an “injustice to the American people.”[46] These efforts seemingly provoked McConnell to schedule floor consideration near the Memorial Day Recess for the district re-nominees. In their debates, Leahy charged that both persons enjoyed September nominations and January hearings with unanimous February panel reports, yet had languished on the floor for almost three months,[47] contending José Olvera would fill one of six district emergencies in Texas.[48] He alleged Republicans persistently tendered excuses for nominee obstruction[49] and criticized their “delay for delay’s sake” which miss[es] the bigger picture” of the responsibility to fill openings.[50] When the Senate approved a lone nominee in July, Democrats pursued multiple unanimous consent requests on votes that were denied.[51] For example, Charles Schumer (D-N.Y.) aptly contrasted the 2008 appointments results with this year, pleading for three designees’ consideration, but Grassley reiterated his notions about the 2014 lame duck session confirmations, which violated regular order, and how this year was like 2007, urging his colleague to “put that in your pipe and smoke it.”[52]

c.   Summary

+++Despite repeated declarations of the regular order mantra by prominent GOP leaders since winning the chamber, from early January until April 12, 2015, they confirmed no district judges, with only four ahead of July.[53] Before June, the committee also granted merely three hearings and one included two nominees; the panel correspondingly allowed four district and five Court of Claims re-nominees’ ballots on February 26 and two more April 23.[54] This desultory record contrasts with Democratic endeavors in Obama’s first six years and even over Bush’s presidency; for instance, the strongest precedents were thirty-four of his fine, uncontroversial recommendations for districts, who realized confirmation in 2007, and Democrats’ systematic consideration of trial jurists before lengthy recesses.[55]

2.   The Appellate Court Process

+++Both parties examine appellate nominees very closely because the selections are comparatively fewer, while they articulate more policy, which often has ideological effects. In November 2014, Obama mustered nomination of Kara Farnandez Stoll to the U.S. Court of Appeals for the Federal Circuit and District Judge Luis Felipe Restrepo to the U.S. Court of Appeals for the Third Circuit.[56] He marshaled no other appellate designees, primarily because GOP senators represent most jurisdictions that have present circuit vacancies without nominees, and they have coordinated little.[57] Stoll was an experienced, mainstream Federal Circuit practitioner, and Restrepo is a stellar, centrist jurist, and each is Latina/?o.[58] Neither received Committee hearings in 2014, as Obama proffered both following the 2014 elections.

+++Stoll’s March hearing proceeded smoothly,[59] yet the panel only voted her to the floor on April 23 where she languished for a number of weeks.[60] McConnell neglected to publicly declare when the superior prospect would be considered, but on June 4, he suggested that the GOP would halt final ballots on more Obama appeals court nominees.[61] After press outlets reported this idea, a McConnell staffer proclaimed: “We’re going to continue to do judges. [There’s] not a shutdown. We probably will have a circuit court nominee.”[62]

+++On June 8, Reid accused the Majority Leader with drastic obstruction—namely rejecting chamber ballots for appellate picks, which contravened his duty—by invoking McConnell’s floor speeches that pled for quick votes on all Bush 2008 circuit selections, while Reid alleged the GOP had yet to confirm one appellate possibility—“not even a consensus nominee such as Kara Stoll,” and urged her prompt consideration.[63] As the Senate departed on the July 4 Recess without considering any person since late May, Leahy protested the inactivity, canvassed the dismal 2015 results and demanded expeditious votes for those on the floor, notably Stoll, which might have provoked her 95-0 July 7 ballot.[64] If few circuit aspirants win confirmation, this would flagrantly violate regular order because that would be unprecedented, while the Democratic majority helped approve ten Bush circuit jurists his ending two years.[65]

+++Restrepo’s process tellingly illuminates stalling, as the fine, noncontroversial jurist waited more than 200 days for a hearing.[66] Obama chose Restrepo with the avid endorsement of Pennsylvania Senators Bob Casey (D) and Pat Toomey (R).[67] However, the Committee only set a hearing for June 10, principally because Toomey did not return his blue slip until May 14, although Casey furnished his in November.[68] Both Senators had previously designated Restrepo for the Eastern District bench, and the chamber felicitously approved the selection in a June 2013 voice vote.[69] The legislators promoted his elevation with a strong press release in which Toomey contended he would “make a superb addition to the Third Circuit.”[70] Nevertheless, the aspirant was excluded from a May hearing on four trial level prospects.[71] The day before that session, the press queried Toomey, who claimed he remained supportive and confident about 2015 confirmation.[72] Grassley pledged he would set a hearing once Toomey provided the blue slip.[73] A panel aide said it was evaluating the nominee’s background under “regular order.”[74] On the chamber floor the day the May hearing occurred, Reid deftly repeated Toomey’s laudatory descriptions of Restrepo while asking if Pennsylvanians wonder why the lawmaker failed to explain the talented nominee’s slowing “by his own party.”[75]

+++Toomey later denied he was stalling Restrepo, and declared the committee was analyzing him but would only conduct a hearing after that concluded and promised to return the blue slip then, unless pertinent concerns surfaced.[76] On May 14, Toomey yielded, producing his blue slip, ostensibly due to the inquiry’s end.[77] The June 10 panel hearing was seamless, as Toomey voiced powerful support and Restrepo clearly answered questions.[78] The candidate was held over yet won approval on a July 9 unopposed voice vote.[79] Given how long most 2015 nominees waited coupled with Grassley’s July tirade and McConnell’s cryptic discussion of his June 4 allusion to circuit votes, it is not surprising that Restrepo’s final ballot was not conducted until January 11, 2016.[80]

+++No defensible idea supports Restrepo’s protracted delay, because Obama first made the jurist’s nomination in 2014 for an emergency opening. His lengthy wait contrasts to Stoll, proposed the same day, who had a March hearing and April Committee report.[81] Observers also insistently contended partisanship explained slow processing.[82]

3.   Summary of District and Appellate Processes

+++Reid and Leahy continuously and convincingly addressed Grassley’s claims with applicable data on confirmations and hearings.[83] The Chair’s figures were rather persuasive, especially when, for instance, he employed analogous metrics, but in some respects they can lack pertinence, as data support numerous concepts.[84] Essential is assiduously fulfilling the constitutional duty to express advice and consent and place talented, consensus aspirants in many vacancies, specifically emergencies.[85] The most relevant precedent is Democrats’ 2007–08 effort, which confirmed almost seventy Bush court picks.[86] In sum, the 2015 processing record—approving one circuit and ten trial jurists—sharply contrasts to Democrats’ work at a comparable juncture.

II.  The Reasons for and Implications of the Problematic Selection Process

A. Reasons

+++The explanations for appointments’ problematic condition are complex. Scholars and politicians robustly debate whether selection has always been troubled,[87] but a number trace the modern “confirmation wars” to the pitched fight about Judge Robert Bork’s Supreme Court nomination three decades ago.[88] Writers contend the process is effectively on a downward trajectory summarized by partisanship and serial obstruction in which the parties ratchet down the regime, while both consider any concession unilateral disarmament.[89] For example, the most recent iteration derives from Republican accusations that Democrats stymied confirmations during the ending pair of Bush years and retaliated for that with unprecedented stalling in Obama’s tenure.[90] Democratic frustration eventually provoked the nuclear option’s invocation that spurred Republicans to contend Democrats had abrogated the rules.[91] Mandating cloture on all prospects concomitantly fueled Democrats’ endeavors that rapidly approved numerous jurists over 2014’s lame duck session to which the GOP responded by profoundly delaying 2015 choices.[92] In short, rampant partisanship and many severe paybacks seem to epitomize the process.

B. Implications

+++2015 inaction leaves the courts with seventy-one Article III judgeships empty, while the AO identifies emergencies for thirty-two circuit and district court positions, a statistic which Republicans permitted to double since January, including the vacancy that Restrepo could fill.[93] Open posts were essentially at ninety for much of the five years which commenced in August 2009; the courts were only able to experience the comparatively low figure of seventy-one vacancies after Democrats had unleashed the nuclear option which prevented Republicans from mounting successful filibusters.[94] However, 2015 inactivity can yield one hundred openings and perhaps fifty emergencies next year.

+++Slow confirmations have many deleterious impacts.[95] They require fine, uncontroversial nominees to place lives and careers on hold and dissuade myriad remarkable candidates from entertaining bench service.[96] Protracted Senate assessment deprives tribunals of judicial resources which they critically need, impedes prompt, economical and fair case disposition, imposes substantially greater pressure on already overburdened jurists and compels litigants to wait years on resolution.[97] These detrimental effects have also undermined citizen regard for selection and the government’s coordinate branches.[98] The above propositions suggest that proposals for improving confirmations warrant scrutiny.

III.  Suggestions for the Future

+++The appointment of merely eleven court nominees in 2015 and other problematic phenomena show that the process will face serious complications over the 2016 presidential election year. Most important, approvals can gradually slow and come to a halt, and the judiciary could have nearly one hundred unfilled positions, almost half emergencies, were 2015 inaction to continue. Accordingly, Obama, the chamber, and members should now pledge to fulfill the shared constitutional duty for appointments, thus providing the bench sufficient resources to deliver justice, with meaningful cooperation throughout the nomination and confirmation procedures. GOP senators and party leaders ought to effectuate the regular order construct again by carefully deploying multiple ideas used at the close of Bush’s Administration, reinstituting strategies that expedite consideration and formulating new promising concepts, which directly fill the ample vacancies with highly qualified centrists.[99]

+++All selection participants must canvass and implement numerous ways of ending or tempering the “confirmation wars.” Integral will be stopping or ameliorating the vicious cycle of paybacks and strident, counterproductive partisanship which the majority’s rhetoric and corresponding delay exemplify, namely the June suggestion by McConnell that few appellate nominees would receive confirmation and Grassley’s petulant July denial of chamber votes until fall. Strikingly ironic about 2015 GOP conduct was the failure to even match approvals in numbers of recent presidential election years.[100]

A.   Selection in Modern Presidential Election Years

+++Because 2016 is one such year, for which peculiar conventions have developed, relatively diverse approaches could enjoy success. A major tradition has been that the nomination and confirmation processes slow, particularly at second terms’ conclusion, and ultimately grind to a halt.[101] This custom is mainly based on respect for voter preferences expressed in the November elections and for incoming chief executives and senators, who deserve the opportunity to proffer candidates and contribute advice and consent.

+++The tradition has allowed consideration of many accomplished, consensus trial level nominees into most autumns but rarely through lame duck sessions. For example, the chamber approved twenty-two Bush pére choices in 1992 after June; seventeen of President Bill Clinton’s over 1996 following June with eight after June 2000; a pair of Bush submissions later than June in 2004 combined with eight recommendations after this month over 2008; and fourteen Obama candidates across 2012.[102] Those data could reveal Democratic Presidents’ nominees fared better, yet many variables such as nomination timing, which party held a chamber majority and the review’s narrow scope, complicate analysis.[103]

+++The tradition concomitantly permits strong, moderate appellate nominees to garner votes past the Memorial Day Recess, but occasionally later. A dramatic illustration was Stephen Breyer whose First Circuit nomination Ted Kennedy (D-Mass.) persuaded Strom Thurmond (R-S.C.) to promote after Ronald Reagan’s 1980 defeat of President Jimmy Carter.[104] More recently, the Senate approved eleven Bush pére circuit aspirants during 1992 (six following June); two of Clinton’s in January 1996 with eight across 2000 (one later than June); while five Bush choices won approval over 2004 and four were confirmed in 2008 (none after that month either year).[105] Five Obama 2012 jurists were appointed, but no candidate after mid-June.[106] These figures show that both parties’ nominees met similar resistance, yet the GOP needs to greatly enhance the pace should it hope to equal the late Bush years’ performance.

+++In short, much consensus attends the conventions that nomination and confirmation processes slow and eventually halt in presidential election years, while circuit appointments conclude sooner, involving fewer approvals. However, considerable disagree-ment remains about the traditions’ exact contours, including when appointments could taper off and stop, while McConnell recently conceded that “there isn’t any particular official or unofficial cutoff date.”[107] Those phenomena explain why the customs apparently have been different over time, honored in the breach and employed to capture partisan advantage.

B.   Traditional Selection Measures

+++In this milieu, numerous tools can apply with more or less success. Politicians ought to seriously consider reinstituting a number of traditional measures, which proved efficacious during the last two Bush years, but that achieved checkered 2015 results witnessed by GOP inactivity.[108] General examples abound. The President should continue assiduously consulting and quickly nominating prominent, mainstream candidates whom numerous home state officers diligently propose. Lawmakers must again respect the convention of abundantly deferring to home state colleagues and Obama, who has cultivated the legislators, heeded their preferences and sent a number of people Republicans tendered or whom they favored.[109] Other general customs are the duties to keep moving able, consensus suggestions at a presidency’s close and voting on cohorts of the aspirants near recesses, yet these conventions seem to be honored in the breach, and the 2015 experience in Committee, but particularly on the floor, was unpromising.[110]

+++Many specific notions also could apply. The President should even more insistently consult senators from jurisdictions where open posts surface to accelerate nominations’ pace. Those officials must supplement cooperation by especially promptly submitting numerous accomplished, uncontroversial prospects.[111] Merit selection panels, which canvass, interview and effectively choose applicants for vacant court seats in Pennsylvania, Texas, and other states have provided help, but the commissions and lawmakers whom they advise can act slowly.[112] Thus, politicians need to closely scrutinize diverse, promising models, such as the California and Wisconsin panels that efficiently yielded numerous capable aspirants over Bush’s tenure,[113] while concomitantly fine-tuning initiatives.

+++Senators also could move very expeditiously when judges proffer notice of intent to assume senior status and cautiously anticipate future empty positions by, for instance, respectfully communicating with jurists once they become eligible.[114] Another concept is a mechanism enlisted in states that possess split delegations, notably Pennsylvania, which enables the senator from that party lacking the White House to submit able candidates.[115] Other profitable solutions include presenting Obama multiple submissions and clearly ranking preferences, which enlarge his flexibility and cabin the necessity to start anew when Obama differs on the lone pick sent, a luxury the United States cannot afford in presidential election years.[116]

+++If GOP lawmakers remain unreceptive to White House cultivation by acting slowly or forwarding minuscule possibilities,[117] Obama could designate with no Republican delegation support; however, this proves unproductive.[118] The Administration can also strike compromises about the kind of accomplished, moderate nominees whom Obama prefers. For example, he could rely more upon diversity vis-à-vis (1) age by championing older selections, as with Circuit Judge Andrew Hurwitz, the last 2012 confirmee;[119] (2) ideology or party affiliation, especially Republicans or Independents, namely a few Toomey candidates;[120] (3) experience, such as prosecutors or civil defense lawyers;[121] and (4) confirming administration, specifically Bush, with Circuit Judge Henry Floyd’s elevation.[122] All modern Presidents capitalize on the last tradition.[123] For instance, Obama has aptly nominated some of his lower court appointees, like Judges Gregg Costa and Robert Wilkins,[124] and even certain jurists three predecessors approved, a dynamic gesture of bipartisanship.[125] Obama might correspondingly invoke “trades,” which he apparently employed in filling lengthy Georgia vacancies.[126] Obama can as well use confrontational tools, which hold senators responsible by publishing the status of pre-nomination negotiations or mustering nominations for all open slots, which could dramatize and publicize how chronic vacancies eviscerate justice.[127]

+++Obama should in turn expedite the process before and once home state politicians send choices. Illustrative would be according nominations higher priority or greater resources.[128] Moreover, the chief executive should hasten American Bar Association candidate analyses, Federal Bureau of Investigation background checks, and White House evaluations and nominations of the persons selected.[129] The President also must continue seeing ideology narrowly and emphasizing merit by comprehensively pursuing and naming superb, mainstream nominees.[130] Because most of his prospects have been competent and uncontroversial, Obama should not have to choose between proposing the type of submissions whom he prefers and filling court vacancies at 2016’s commencement, as that salutary custom has governed early in many Presidents’ eighth year, a system which the Bush initiative epitomizes.[131]

+++For its part, the Committee should provide greater numbers of hearings with more nominees while offering faster discussions and ballots.[132] The Committee ought to survey additional productive notions that foster comparatively efficient review. A helpful approach, which Orrin Hatch (R-Utah) practiced when Judiciary Chair during the Bush years, was mounting abbreviated hearings for talented, centrist nominees.[133] One illustration of this measure was the June 10 session for Restrepo and two district nominees, which entailed less than one hour with probing queries and frank, complete responses.[134] Another solution that merits careful investigation would be holding discussions and votes the first time the panel considers nominees, specifically for emergencies, rather than delaying them a week, as happened with more than 350 Obama candidates, in particular Restrepo.[135]

+++The Majority Leader needs to substantially expand floor debates and ballots. For instance, he could reestablish a valuable procedure which Democrats applied over Bush’s concluding years: having final votes regarding every strong, moderate district nominee on the floor before prolonged recesses, as Leahy cogently urged, and maybe clear them near the 2016 Memorial Day, July 4, or August Recesses.[136] McConnell concomitantly ought to illuminate his June discussion of appellate candidates, because appointing very small numbers over a President’s last years would be unprecedented.[137] Should he remain unresponsive, Democrats can attempt protesting with unanimous consent requests to hold expeditious final votes, which succinctly publicize and dramatize obstruction’s harmful impacts, yet Republicans flatly denied two reasonable July 2015 Democratic petitions urging floor ballots on recommendations.[138]

C.   Pragmatic Politics

+++Even if the constitutional duty of furnishing advice and consent and the responsibility to a coordinate branch for delivering adequate judicial resources do not persuade the GOP to collaborate more, some pragmatism, self-interest and political realities should dictate compliance with numerous traditional, modest approaches. For example, the party’s sizeable presidential field inspires little confidence that anyone from this group will become the next chief executive, while over 2016 Republicans will defend twice as many chamber seats as the opposition.[139] These prognostications suggest, for instance, that Republicans could prefer a number of the fine, mainstream nominees Obama will marshal at his tenure’s conclusion to submissions whom a new Democratic President might appoint, especially should Republicans not maintain the chamber. If the GOP wins the presidency, the figures above show Democrats will probably capture the Senate, which means the less the Republican party cooperates now the more likely that action will spark Democratic conduct as problematic or worse once 2017 begins.[140]

D.   More Dramatic, Controversial Approaches

+++Nevertheless, were GOP senators to resist Democrats’ overtures or reject collaboration, Obama may actually consider additional dramatic, controversial alternatives. He can rely on the bully pulpit to hold GOP legislators accountable for slowly choosing picks, tendering few aspirants or delaying the confirmation regime following nomination or make openings an election issue.[141] The chief executive and lawmakers can agree to drastically revamp the system through inauguration of a bipartisan judiciary whereby the party lacking executive control might designate specific percentages of nominees, a technique several legislators have adopted.[142] Congress may package this idea with bills authorizing seventy-three judgeships, which could take effect over 2017, thus advantaging neither party.[143]

+++If the situation becomes egregious, comparatively radical devices might be indicated. For example, Obama always can recess appoint designees, yet he wisely refrained from capitalizing on that notion because thorny legal and political concerns trouble the solution’s application.[144] Democratic members could also boycott committee nomination hearings and meetings, while the caucus may analogously treat chamber floor activity, thereby confounding attempts to conduct panel and Senate business.[145]

E.   The Judiciary

+++Finally, the Constitution assigns the political branches greater responsibility for selection than the courts, but they might apply numerous mechanisms. For instance, Chief Justices William Rehnquist and John Roberts deployed Year-End Reports to explain how openings directly undercut the courts and harm litigants while reprimanding both parties for stalling confirmations.[146] Individual jurists or the bench as a whole, through entities, notably the Judicial Conference, may publicly and dramatically register opposition to delay in selection. For example, particular jurists or institutions have criticized, and should continue emphasizing, the pressures which numbers of vacancies impose and even testify before Congress or lobby it and each legislator on matters like increased judgeships.[147] Nonetheless, certain actions might elicit concerns about separation of powers or judicial independence, specifically over the presidential election year.[148]


+++If minuscule 2015 confirmations—resembling the few approvals seen during presidential election years—represent the new majority’s definition of regular order, this nascent leadership inspires de minimis confidence about 2016 court appointments. Especially ironic has been that the regular order trope suffuses much GOP discourse, even while the party has continued to undermine this order in the approval system. Recalcitrance and not honoring the chamber’s duty have acutely undercut the coordinate judiciary’s attempts to fulfill essential constitutional responsibilities. Thus, during 2016, Obama and senators must again implement regular order derived from traditions used over recent presidential election years, namely district confirmations until autumn and the conventional appointments record compiled across 2007–08. Only then may the courts better deliver justice.


* Williams Chair in Law, University of Richmond. Thanks to Peggy Sanner and Katie Lehnen for fine ideas, Leslee Stone for excellent processing as well as Russell Williams and the Hunton Williams Summer Endowment Fund for generous, continuing support. Remaining errors are mine.

        [1].    See infra Part I.B.

        [2].    Jennifer Bendery, Congratulations, GOP. You’re Confirming Judges at the Slowest Rate in 60 Years, Huffington Post (Sept. 17, 2015), http://www.huffingtonpost.com /entry/obama-judicial-nominations_55faced7e4b08820d9178a5c.

        [3].    Carl Tobias, Senate Gridlock and Federal Judicial Selection, 88 Notre Dame L. Rev. 2233, 2239–40 (2013) [hereinafter Tobias, Senate Gridlock]; see Sheldon Goldman et al., Obama’s First Term Judiciary: Picking Judges in the Minefields of Obstructionism, 97 Judicature 7, 13–16 (2013).

        [4].    Goldman et al., supra note 3, at 17; Texas: State of Judicial Emergency, Alliance for Justice, http://www.afj.org/our-work/issues/judicial-selection/texas-epicenter-of-the-judicial-vacancy-crisis (last visited Jan. 4, 2016); see also 161 Cong. Rec. S6151 (daily ed. July 30, 2015) (statement of Sen. Schumer).

        [5].    Goldman et al., supra note 3, at 16–17; Tobias, Senate Gridlock, supra note 3, at 2242–43.

        [6].    It found most fine. Tobias, Senate Gridlock, supra note 3, at 2242–43. Six of the fifteen were for the Arizona District that was an emergency. Carl Tobias, Filling the District of Arizona Vacancies, 56 Ariz. L. Rev. Syllabus 5, 5–6 (2014) [hereinafter Tobias, Arizona Vacancies].

        [7].    Goldman et al., supra note 3, at 26–29; Tobias, Senate Gridlock, supra note 3, at 2243–46.

        [8].    Tobias, Senate Gridlock, supra note 3, at 2244; see also Juan Williams, The GOP’s Judicial Logjam, The Hill (July 27, 2015, 6:00 AM), http://thehill.com/opinion/juan-will iams/249196-juan-williams-the-gops-judicial-logjam (discussing Republican obstruction of judicial confirmations).

        [9].    U.S. Courts, Archive of Judicial Vacancies (2009–14), http://www.uscourts. gov/judges-judgeships/judicialvacancies/archive-judicial-vacancies; see infra note 44 and accompanying text.

      [10].    Tobias, Senate Gridlock, supra note 3, at 2246; supra notes 6–8 and accompanying text; infra note 24 and accompanying text.

      [11].    Tobias, Senate Gridlock, supra note 3, at 2252.

      [12].    See Carl Tobias, Filling the D.C. Circuit Vacancies, 91 Ind. L.J. 121 (2015); Jeffrey Toobin, The Obama Brief, New Yorker (Oct. 27, 2014), http://www.newyorker.com/mag azine/2014/10/27/obama-brief.

      [13].    Paul Kane, Reid, Democrats Trigger ‘Nuclear’ Option; Eliminate Most Filibusters on Nominees, Wash. Post (Nov. 21, 2013), https://www.washingtonpost.com/politics/sen ate-control-at-stake-in-todays-midterm-elections/2014/11/04/e882353e-642c-11e4-bb14-4cf ea1e742d5_story.html.

      [14].    U.S. Courts, Archive of Judicial Vacancies (2013–14), http://www.uscourts. gov/judges-judgeships/judicialvacancies/archive-judicial-vacancies.

      [15].    161 Cong. Rec. S3223 (daily ed. May 21, 2015) (statement of Sen. Leahy); Carl Tobias, Judicial Selection in Congress’ Lame Duck Session, 90 Ind. L.J. Supp. 52, 56 (2015) [hereinafter Tobias, Lame Duck Session].

      [16].    Jerry Markon et al., Republicans Win Senate Control as Polls Show Dissatisfaction with Obama, Wash. Post (Nov. 4, 2014), https://www.washingtonpost.com/politics/ senate-control-at-stake-in-todays-midterm-elections/2014/11/04/e882353e-642c-11e4-bb14-4cfea1e742d5_story.html; Jonathan Weisman & Ashley Parker, Riding Wave of Discontent, G.O.P. Takes Senate, N.Y. Times (Nov. 4, 2014), http://www.nytimes.com/2014/11/05/ us/politics/midterm-elections.html.

      [17].    See, e.g., 160 Cong. Rec. S4679, S4681 (daily ed. July 22, 2014) (statement of Sen. Hatch) (“It is past time to restore the Senate’s rightful place in our constitutional order.”).

      [18].    161 Cong. Rec. S28 (daily ed. Jan. 7, 2015).

      [19].    Id. at S155 (daily ed. Jan. 12, 2015); id. at S2767 (daily ed. May 12, 2015). This approach has encountered some criticism from across the aisle. See, e.g., id. at S2949 (daily ed. May 18, 2015) (statement of Sen. Reid); id. at S3223 (statement of Sen. Leahy). Other commentators have noticed the decline in judicial confirmations as well. Jim Manley, Has the Senate Really Turned a Corner?, Wall St. J., (June 24, 2015) http://blogs.wsj.com /washwire/2015/06/24/has-the-senate-really-turned-a-corner/.

      [20].    See Hearing on Judicial Nominees Before the S. Comm. on the Judiciary, 114th Cong. (Jan. 21, 2015) (statement of Sen. Chuck Grassley) [hereinafter Jan. 21 Hearing]; David Catanese, Chuck Grassley’s Gavel Year, U.S. News & World Rep. (Jan. 28, 2015), http://www.usnews.com/news/articles/2015/01/28/chuck-grassleys-gavel-year (stating Grassley’s desire to maintain traditional protocol for nominations). But see 161 Cong. Rec. S6151 (daily ed. July 30, 2015) (statement of Sen. Schumer).

      [21].    Most Presidents tap able centrists. Goldman et al., supra note 3, at 15–17; Tobias, Senate Gridlock, supra note 3, at 2240.

      [22].    Goldman et al., supra note 3, at 17; Alliance for Justice, supra note 4.

      [23].    U.S. Courts, Judicial Vacancies: Judicial Emergencies (2015), http:// www.uscourts.gov/judges-judgeships/judicial-vacancies/judicial-emergencies; U.S. Senate, Senators of the 114th Congress (2015), http://www.senate.gov/senators/contact. The AO, the administrative arm of the federal courts, premises emergencies on dockets’ large magnitude and vacancies’ protracted length. Judicial Emergency Definition, U.S. Courts, http://www.uscourts.gov/judges-judgeships/judicialvacancies/archive-judicial-vacancies/jud icial-emergencies/judicial-emergency-definition (last visited Jan. 4, 2016).

      [24].    Alliance for Justice, supra note 4; accord, 161 Cong. Rec. S2104 (daily ed. Apr. 13, 2015) (statement of Sen. Leahy). This derives from senators’ slow responses to current vacancies and not foreseeing future ones, slow selection panel scrutiny, differences on picks among Democratic House members and between them and the senators and slow White House action. But see Sylvan Lane, Senate Fills South Texas Judgeship; First Confirmation Since GOP Takeover, Dall. Morning News: Trail Blazers Blog (Apr. 13, 2015, 6:10 PM), http://trailblazersblog.dallasnews.com/2015/04/senate-fills-south-texas-jud geship-first-confirmation-since-gop-takeover.html/.

      [25].    U.S. Courts, Judicial Vacancies: Current Judicial Vacancies (2015), http:// www.uscourts.gov/judges-judgeships/judicial-vacancies/current-judicial-vacancies.

      [26].    Id. (2011–14); see Tobias, Senate Gridlock, supra note 3, at 2261; Lauren French, Lewis Opposes Boggs Nomination, Politico (May 19, 2014), http://www.politico.com/story/ 2014/05/john-lewis-michael-boggs-oppose-judge-nomination-georgia-106839; Dan Malloy, The Delegation Georgians in D.C.; Woodall Does Balancing Act in House GOP Post, Atlanta J.-Const., July 20, 2014, at 14A.

      [27].    See Jennifer Jacobs, Grassley’s Priority Checklist, Des Moines Reg. (Jan. 7, 2015), http://www.desmoinesregister.com/story/news/politics/2015/01/07/grassley-checklist-prior ities-judiciary-committee/21394233.

      [28].    Compare Jan. 21, 2015 Hearing, supra note 20, with Hearings on Judicial Nominees Before the S. Comm. on the Judiciary, 113th Cong. (Jan. 23, Feb. 13, 2013, Jan. 8, 28, 2014); see Catanese, supra note 20.

      [29].    Hearing on Judicial Nominees Before the S. Comm. on the Judiciary, 114th Cong. (Mar. 11, 2015); id. (May 6, 2015); id. (June 10, 2015); id. (July 22, 2015); id. (Sept. 30, 2015); id. (Oct. 21, 2015; id. (Dec. 9, 2015).

      [30].    Compare Hearings on Judicial Nominees Before the S. Comm. on the Judiciary, 114th Cong. (Mar. 11, June 10, July 22, 2015), with Hearings on Judicial Nominees Before the S. Comm. on the Judiciary, 113th Cong. (Jan. 28, Sept. 9, 2014); see supra text accompanying note 24 (noting many senators’ failure to tender picks for judicial nomination).

      [31].    161 Cong. Rec. S2264 (daily ed. Apr. 20, 2015).

      [32].    Id. He said four executive nominees, including for Attorney General, testified and that Obama’s nominees had been treated “extremely fairly,” as he named 309 judges versus 273 for Bush. Id. But see supra note 29, infra notes 33, 42, 44, 52.

      [33].    161 Cong. Rec. S3850 (daily ed. June 8, 2015). But see supra notes 28, 31–32 and accompanying text.

      [34].    Executive Business Meeting Before the S. Comm. on the Judiciary, 114th. Cong. (Feb. 26, 2015) [hereinafter Feb. 26 Executive Business Meeting]; see also Executive Business Meeting Before the S. Comm. on the Judiciary, 114th. Cong. (Feb. 12, 2015); Josh Voorhees, Procedural Purgatory, Slate (Mar. 29, 2015), http://www.slate.com/articles/ news_and_politics/politics/2015/03/loretta_lynch_confirmation_mitch_mcconnell_and_the_gop_have_delayed_it_but.html; supra text accompanying note 20.

      [35].    See, e.g., Executive Business Meeting Before the S. Comm. on the Judiciary, 113th. Cong. (Sept. 11, 2014); Executive Business Meeting Before the S. Comm. on the Judiciary, 114th. Cong. (Nov. 13, 2014); see also supra note 6.

      [36].    Executive Business Meeting Before the S. Comm. on the Judiciary, 113th. Cong. (Nov. 20, 2014); see also supra note 24.

      [37].    Jan. 21, 2015 Hearing, supra note 20 (showing four District Judge nominees on the agenda); Feb. 26 Executive Business Meeting, supra note 34 (voting on judicial nominees). Grassley eschewed weekly meetings, unlike Leahy. See, e.g., Executive Business Meeting Before the S. Comm. on the Judiciary, 113th Cong. (June 12, 19, 26, 2014) (providing statements from Leahy during weekly meetings).

      [38].    158 Cong. Rec. S8375 (daily ed. Dec. 21, 2012) (statement of Sen. Leahy); see Tobias, Senate Gridlock, supra note 3; Burgess Everett & Seung Min Kim, Judge Not: GOP Blocks Dozens of Obama Court Picks, Politico (July 6, 2015), http://www.politico.com/ story/2015/07/payback-gop-blocks-obama-judge-picks-judiciary-119743.

      [39].    159 Cong. Rec. S8418 (daily ed. Nov. 21, 2013); see Jeffrey Toobin, Reid Changed the Federal Courts, New Yorker (Mar. 27, 2015), http://www.newyorker.com/news/news-desk/how-harry-reid-changed-the-federal-courts; Carl Hulse, Reid to Retire from Senate in 2016, N.Y. Times (Mar. 27, 2015), http://www.nytimes.com/2015/03/28/us/politics/senator-harry-reid-retire.html.

      [40].    See Neil Eggleston, Judicial Nominations: Accomplishments and the Work that Lies Ahead, White House Blog (Dec. 17, 2014, 3:39 PM), https://www.whitehouse.gov/ blog/2014/12/17/judicial-nominations-accomplishments-and-work-lies-ahead.

      [41].    The delay troubled Leahy, as the GOP proposed all four. See 161 Cong. Rec. S2104–05 (daily ed. Apr. 13, 2015) (statement of Sen. Leahy).

      [42].    161 Cong. Rec. S2029–30 (daily ed. Mar. 26, 2015). They approved sixty-eight jurists during Bush’s last two years and fifteen by the end of March 2007, in contrast to none in 2015. Id.

      [43].    161 Cong. Rec. S2028–30 (daily ed. Mar. 26, 2015); accord, id. at S2264 (daily ed. Apr. 20, 2015); see U.S. Judicial Conf. Proceedings 18 (2015). The courts’ policymaking arm bases proposals on conservative caseload estimates.

      [44].    161 Cong. Rec. S2029–30 (daily ed. Mar. 26, 2015). For consensus nominees’ approval, see Goldman et al., supra note 3, at 13–14; Michael Shenkman, Decoupling District from Circuit Judge Nominations: A Proposal to Put Trial Bench Nominations on Track, 65 Ark. L. Rev. 217, 292 (2012). For the ninety vacancies idea, see Archive of Judicial Vacancies, supra note 9; Goldman et al., supra note 3, at 13.

      [45].    161 Cong. Rec. S2263–64 (daily ed. Apr. 20, 2015). Grassley said approving eleven judges in the 2014 lameduck session violated “standard practice.” When they are included, 2015 is like 2007. 161 Cong. Rec. S2264 (daily ed. Apr. 20, 2015).

      [46].    161 Cong. Rec. S2659 (daily ed. May 6, 2015). Continuing GOP inaction led Reid to repeat the earlier concerns and focus on Texas’s seven emergencies. Id. at S2949 (daily ed. May 18, 2015).

      [47].    Id. at S3223 (daily ed. May 21, 2015).

      [48].    It had eight openings at that time. 161 Cong. Rec. S3223 (daily ed. May 21, 2015).

      [49].    161 Cong. Rec. S3223 (daily ed. May 21, 2015). He refuted Grassley’s claim that only eighteen judges were confirmed in 2007, as they were held over from 2006, by urging he failed to say nine judges “were not . . . left pending” on the floor at 2006’s end. Id. at S3223 (emphasis added); see supra text accompanying notes 43–44; Editorial: Grassley Joins Race to Bottom, Des Moines Reg. (Aug. 1, 2015), http://www.desmoinesregister.com/ story/opinion/editorials/2015/07/31/grassley-joins-race-bottom-political-rhetoric/30963785/.

      [50].    161 Cong. Rec. S3223 (daily ed. May 21, 2015). After much home-state politician praise, both nominees had 100-0 votes. Id. at S3223–24.

      [51].    See 161 Cong. Rec. S4678 (confirming the nomination of Kara Stoll).

      [52].    161 Cong. Rec. S6151–52 (daily ed. July 30, 2015); see id. at S6999–7000 (daily ed. Sept. 29, 2015) (Sen. Leahy summarizing dismal 2015 record, contrasted to 2007); id. at S5047–48 (daily ed. July 14, 2015) (statement of Sen. Coons) (requesting unanimous consent). But see id. at S5048–49 (statement of Sen. Cotton) (objecting).

      [53].    Archive of Judicial Vacancies (2009–14), supra note 9.

      [54].    See supra notes 30, 36, 38 and accompanying text (discussing delayed voting by the judiciary committee in late 2014 and hearings conducted for nominees in March and the summer of 2015); infra note 52 and accompanying text (noting that voting on nominees was again stalled in March 2015).

      [55].    U.S. Courts, Archive of Judicial Vacancies (2007), http://www.uscourts. gov/judges-judgeships/judicialvacancies/archive-judicial-vacancies; 161 Cong. Rec. S2029-30 (daily ed. Mar. 26, 2015) (statement of Sen. Leahy). Democrats’ acts, such as using the nuclear option, seemed to extend the “confirmation wars.” See source cited supra notes 3, 12.

      [56].    White House, Office of the Press Sec’y, President Obama Nominates Two to Serve on the U.S. Courts of Appeals (Nov. 12, 2014); see U.S. Courts, Judicial Vacancies: Current Judicial Vacancies (2015), http://www.uscourts.gov/judges-judge ships/judicial-vacancies (noting Luis Felipe Restrepo as unconfirmed nominee to the Third Circuit); U.S. Courts, Judicial Vacancies: Confirmation Listing (2015), http://www. uscourts.gov/judges-judgeships/judicial-vacancies/confirmation-listing (noting Kara Farnandez Stoll as confirmed appointee to the Federal Circuit); White House, Office of the Press Sec’y, Presidential Nominations Sent to the Senate (Jan. 7, 2015).

      [57].    Russell Wheeler, With Senate Control, Will the GOP Stop Confirming Circuit Judges?, Brookings: FixGov Blog (Nov. 16, 2015, 1:51 PM), http://www.brookings.edu/ blogs/fixgov/posts/2015/06/10-circuit-court-confirmations-wheeler; see Toobin, supra note 39; supra notes 22–26 and accompanying text.

      [58].    See sources cited supra note 56.

      [59].    Hearing on Judicial Nominees Before the S. Comm. on the Judiciary, 114th Cong. (Mar. 11, 2015).

      [60].    Executive Business Meeting Before the S. Comm. on the Judiciary, 114th Cong. (Apr. 23, 2015).

      [61].    See Steve Benen, McConnell’s Silent Governing Failure, MSNBC (June 5, 2015), http://www.msnbc.com/rachel-maddow-show/mcconnells-silent-governing-failure; Nick Gass, McConnell Vows to Slow Judicial Nominees, Politico (June 5, 2015), http:// www. politico.com/story/2015/06/mitch-mcconnell-judicial-nominations-118674.

      [62].    Alexander Bolton, McConnell Backs Away from Shutdown Talk, The Hill (June 6, 2015), http://thehill.com/homenews/senate/244196-mcconnell-backs-away-from-judicial-shutdown-talk.

      [63].    161 Cong. Rec. S3849–50 (daily ed. June 8, 2015).

      [64].    161 Cong. Rec. S4591 (daily ed. June 24, 2015). Leahy reiterated much data and the GOP duty. Id.; see supra notes 42–44, 50 and accompanying text; see also id. at S4678 (daily ed. July 7, 2015) (Stoll vote).

      [65].    See supra notes 42, 46, 63–64 and accompanying text.

      [66].    Benched! History Shows “Regular Order” Means Appellate Court Confirmations, Alliance for Justice, http://www.afj.org/blog/benched-history-shows-regular-order-mea ns-appellate-court-confirmations (last visited Jan. 4, 2016).

      [67].    Press Release, Office of Robert P. Casey, Jr., Casey, Toomey Applaud Nomination of Judge Luis Felipe Restrepo to U.S. Court of Appeals for the Third Circuit (Nov. 12, 2014), http://www.casey.senate.gov/newsroom/releases/casey-toomey-applaud-nomination-of-judge-luis-felipe-restrepo-to-us-court-of-appeals-for-the-third-circuit.

      [68].    See 161 Cong. Rec. S6369 (daily ed. Aug. 5, 2015). Saranac Spencer, Toomey Submits Blue Slip, But Will Restrepo Get a Hearing?, Legal Intelligencer (May 19, 2015), http://www.thelegalintelligencer.com/printerfriendly/id=1202726785818#; Jonathan Tamari, A Judicial Nominee Waits; Toomey Gets Blamed, Phila. Inquirer (May 9, 2015), http://articles.philly.com/2015-05-09/news/61952388_1_toomey-luis-felipe-restrepo-president-obama.

      [69].    159 Cong. Rec. S4516 (daily ed. June 17, 2013); Spencer, supra note 68. He was then a magistrate judge of this district. All modern Presidents elevate judges from lower courts. Tobias, Senate Gridlock, supra note 3, at 2258.

      [70].    See Press Release, Office of Robert P. Casey, Jr., supra note 67.

      [71].    No nominee was picked before him. Hearings on Judicial Nominees Before the S. Comm. on the Judiciary, 114th Cong. (May 6, 2015).

      [72].    Jennifer Bendery, Pat Toomey Is Blocking His Own Judicial Nominee, for Some Reason, Huffington Post (May 5, 2015) [hereinafter Bendery, Pat Toomey Is Blocking], http://www.huffingtonpost.com/2015/05/05/pat-toomey-luis-restrepo_n_7214790.html; Tracie Mauriello, Confirmation Vote on Pennsylvania Jurist Awaits ‘Blue Slip’ From Toomey, Pittsburgh Post-Gazette (May 7, 2015), http://www.post-gazette.com/local/20 15/05/06/Toomey-holding-up-confirmation-of-Pennsylvania-jurist-he-supports/stories/2015 05060171; Saranac Spencer, Political Maneuvers Hold up Nominee for Third Circuit, Legal Intelligencer (May 6, 2015), http://www.thelegalintelligencer.com/id=120272559 0790?keywords=Spencer+%22Political+maneuvers%22&publication=The+Legal+Intellig encer.

      [73].    Bendery, Pat Toomey Is Blocking, supra note 72; Mauriello, supra note 72. Grassley’s pledge and failure to broach an ongoing inquiry undercut Toomey’s excuse for waiting six months.

      [74].    Spencer, supra note 72 (emphasis added). She said members may hold blue slips until vetting ends, as questions can arise in that process. Mauriello, supra note 72; accord Jennifer Bendery, Pat Toomey Insists He’s Not Holding up a Judicial Nominee He’s Holding up, Huffington Post (May 13, 2015), http://www.huffingtonpost.com/2015/05/13/pat-toomey-judge-restrepo_n_7277332.html.

      [75].    161 Cong. Rec. S2660 (daily ed. May 6, 2015); see Hearings on Judicial Nominees Before the S. Comm. on the Judiciary, 114th Cong. (May 6, 2015) (statement of Sen. Grassley).

      [76].    Pat Toomey, I Am Not Delaying Judge L. Felipe Restrepo, Pitt. Post-Gazette (May 18, 2015), http://www.post-gazette.com/opinion/letters/2015/05/13/I-am-not-delaying-Judge-L-Felipe-Restrepo-s-3rd-Circuit-nomination/stories/201505130068; see Tamari, supra note 68; see also supra notes 72–74 and accompanying text (discussing Toomey’s claims that he remained supportive of Restrepo, despite his failure to return the blue slip).

      [77].    Hearings on Judicial Nominees Before the S. Comm. on the Judiciary, 114th Cong. (June 10, 2015); Tracie Mauriello, Toomey Signs Off On Nominee for Federal Appeals Court, Pitt. Post-Gazette (May 14, 2015), http://www.post-gazette.com/local/region/20 15/05/14/Toomey-signs-off-on-nominee-for-federal-appeals-court/stories/201505140325; Williams, The GOP’s Judicial Logjam, supra note 8 (reiterating criticism of GOP for delay).

      [78].    Senators posing queries seemed satisfied. Hearings on Judicial Nominees Before the S. Comm. on the Judiciary,114th Cong. (June 10, 2015); Hearing Examining the Federal Regulatory System to Improve Accountability, Transparency, and Integrity Before the S. Comm. on the Judiciary, 114th Cong. (June 10, 2015) (statement of Sen. Grassley urging 2015 circuit hearings and approvals to mirror 2007); Tracie Mauriello, After Hearing, Philadelphia Judge Close to Third Circuit Confirmation, Pitt. Post-Gazette (June 11, 2015), http://www.post-gazette.com/news/politics-nation/2015/06/11/After-hearing-Philadel phia-judge-close-to-3rd-Circuit-confirmation/stories/201506110112.

      [79].    Executive Business Meeting Before the S. Comm. on the Judiciary, 114th Cong. (June 25, July 9, 2015); see Executive Business Meeting Before the S. Comm. on the Judiciary, 114th Cong. (Apr. 23, 2015); Executive Business Meeting Before the S. Comm. on the Judiciary, 114th Cong. (Mar. 11, 2015).

      [80].    161 Cong. Rec. S8443 (daily ed. Dec. 7, 2015) (confirmation vote, but not Restrepo’s); see John Tamari, Senate Schedules Vote on Long-Delayed Pa. Nominee Restrepo, Phila. Inquirer (Dec. 9, 2015, 9:22 PM), http://www.philly.com/philly/blogs/capitolinq/Sen ate-schedules-vote-on-long-delayed-PA-nominee-Restrepo.html (confirming the agreement on scheduling the January 11 vote); supra notes 59–64 (Stoll’s wait); supra notes 44–50 (re-nominees with much GOP support took ninety days from panel to final votes).

      [81].    See supra text accompanying notes 44–45, 50. She lacked his prior full inquiry, leaving unclear why he took 6 months, especially with his full 2013 canvass and later district court service.

      [82].    Merely four district judges won 2015 approval in contrast to Democrats’ helping confirm three circuit and fifteen district judges by April 2007. See 161 Cong. Rec. S2104 (daily ed. Apr. 13, 2015) (statement of Sen. Leahy); Bendery, supra note 74.

      [83].    See supra notes 33, 42–50 and accompanying text.

      [84].    See Russell Wheeler, Confirming Federal Judges During the Final Two Years of the Obama Administration: Vacancies up, Nominees down, Brookings: FixGov Blog (Aug. 18, 2015, 8:00 AM), http://www.brookings.edu/blogs/fixgov/posts/2015/08/18-obama-federal-judges-confirmation-wheeler.

      [85].    See supra notes 43, 46, 49, 63 and accompanying text. GOP senators proposed many nominees. See 161 Cong. Rec. S2104–05 (daily ed. Apr. 13, 2015) (statement of Sen. Leahy).

      [86].    Ten were circuit picks. See supra text accompanying note 42.

      [87].    Michael Gerhardt & Michael Ashley Stein, The Politics of Early Justice: Federal Judicial Selection, 1789-1861, 100 Iowa L. Rev. 551, 553 (2015); Orrin Hatch, The Constitution as the Playbook for Judicial Selection, 32 Harv. J. L. & Pub. Pol’y 1035, 1038–39 (2009); Jed Handelsman Shugerman, The Golden or Bronze Age of Judicial Selection?, 100 Iowa L. Rev. Bulletin 69, 70 (2015), http://ilr.law.uiowa.edu/files/ilr.law.uiowa.edu/files/ILRB_100_Shugerman. pdf.

      [88].    See generally Ethan Bronner, Battle for Justice: How the Bork Nomination Shook America (1989) (explaining that Robert Bork’s nominations was contentious); Mark Gitenstein, Matters of Principle: An Insider’s Account of America’s Rejection of Robert Bork’s Nomination to the Supreme Court (1992) (discussing the epic struggle that took place between senators, the press, staff, and civil liberty organizations over Robert Bork’s nomination).

      [89].    Doug Kendall, The Bench in Purgatory: The New Republican Obstructionism on Obama’s Judicial Nominees, Slate (Oct. 26, 2009), http://www.slate.com/articles/news_ and_politics/jurisprudence/2009/10/the_bench_in_purgatory.html.

      [90].    See supra notes 6–10 and accompanying text.

      [91].    See supra notes 12–14 and accompanying text.

      [92].    See supra notes 14–83 and accompanying text.

      [93].    Federal Judicial Vacancies (2015), supra note 56; 161 Cong. Rec. S2029-30 (daily ed. Mar. 26, 2015) (statement of Sen. Leahy); see Joe Palazzolo, In Federal Courts, the Civil Cases Pile up, Wall St. J. (Mar. 6, 2015), http://www.wsj.com/articles/in-federal-courts-civil-cases-pile-up-1428343746.

      [94].    See sources cited supra notes 12–14, 39, 44.

      [95].    See Senate Gridlock, supra note 3, at 2253; 161 Cong. Rec. S3223 (daily ed. May 21, 2015) (statement of Sen. Leahy).

      [96].    Kendall, supra note 89; Todd Ruger, Nominees Are Living on Hold, Nat’l L. J. (Dec. 17, 2012), http://www.nationallawjournal.com/id=1202581557603/Nominees-are-liv ing-on-hold?slreturn=20151106194656/; see Andrew Cohen, In Pennsylvania, the Human Costs of Judicial Confirmation Delays, The Atlantic (Sept. 9, 2012), http://www.theatlan tic.com/politics/archive/2012/09/in-pennsylvania-the-human-costs-of-judicial-confirmation-delays/261862/.

      [97].    See U.S. Courts, Year-End Report on the Federal Judiciary 7–8 (2010); id. (1997, 2002); Tobias, Senate Gridlock, supra note 3, at 2253; Jennifer Bendery, Federal Judges Are Burned Out, Overworked and Wondering Where Congress Is, Huffington Post (Sept. 30, 2015), http://www.huffingtonpost.com/entry/judge-federal-courts-vacancies _55d77721e4b0a40aa3aaf14b; Wheeler, supra note 84.

      [98].    See Cohen, supra note 96 (explaining the “real-life consequences of delay” due to “justice delayed syndrome”); Palazzolo, supra note 93 (noting citizens’ discontent with civil cases piling up due to slow judicial appointment process); Ruger, supra note 96 (describing judicial appointment delay as having large impact on public).

      [99].    For many specific ideas, see Shenkman, supra note 44, at 298–311; Tobias, Senate Gridlock, supra note 3, at 2255–65.

    [100].    See 161 Cong. Rec. S3849–50 (daily ed. June 8, 2015) (statement of Sen. Reid); Carl Tobias, Filling Judicial Vacancies in a Presidential Election Year, 46 U. Rich. L. Rev. 985, 996 (2012); Everett & Kim, supra note 38.

    [101].    Denis Steven Rutkus & Kevin M. Scott, Cong. Research Serv., Nomination and Confirmation of Lower Federal Court Judges in Presidential Election Years (2008); Russell Wheeler, Judicial Confirmations: What Thurmond Rule?, 45 Brookings 1 (Mar. 2012), http://www.brookings.edu/~/media/research/files/papers/2012/3/judicial-wheel er/03_judicial_wheeler.pdf.

    [102].    U.S. Courts, Archive of Judicial Vacancies (1992, 1996, 2000, 2004, 2008, 2012), http://www.uscourts.gov/judges-judgeships/judicialvacancies/archive-judicial-vacan cies; id. (2002, 2010, 2014) (approving 20 Bush, and 19 and 23 Obama, picks in mid-term lame duck sessions); Archive of Judicial Vacancies, supra note 9; Wheeler, supra note 101.

    [103].    Wheeler, supra note 101, at 4 (identifying variables); see Rutkus & Scott, supra note 101, at 3–4, 51–53.

    [104].    Sheldon Goldman, Picking Federal Judges 261 (1997); Rutkus & Scott, supra note 101, at 7–8.

    [105].    U.S. Courts, Archive of Judicial Vacancies (1992, 1996, 2000, 2004, 2008), http://www.uscourts.gov/judges-judgeships/judicialvacancies/archive-judicial-vacancies; Wheeler, supra note 101.

    [106].    McConnell agreed on no final votes after June 12, making five able, consensus picks wait until 2013. See Archive of Judicial Vacancies (2012), supra note 9; infra text accompanying note 119.

    [107].    Jennifer Bendery, Mitch McConnell Will Finally Let Some Judges Get Confirmed Next Year, Huffington Post (Dec. 15, 2015, 7:45 PM), http://www.huffingtonpost.com/ entry/republicans-obama-judicial-nominees_567055e0e4b0e292150f6690; see Rutkus & Scott, supra note 101, at 3–4, 51–53; Wheeler, supra note 101, at 1.

    [108].    The GOP must expedite with more hearings and faster panel and floor votes on consensus nominees. See infra notes 132–36. However, 2015 inaction shows the ideas lack promise for 2016. See supra notes 52, 61.

    [109].    Goldman et al., supra note 3, at 16–17; Carl Tobias, Justifying Diversity in the Federal Judiciary, 106 Nw. U. L. Rev. Colloquy 283, 296 (2012). GOP senators who differ with Obama can suggest preferable choices.

    [110].    See supra notes 28–54, 57, 60–86, 108 and accompanying text.

    [111].    See supra notes 3–4, 21–27 and accompanying text.

    [112].    Jessica M. Karmasek, Members of Texas Judicial Evaluation Committee Announced, Legal Newsline (Apr. 17, 2013), http://legalnewsline.com/stories/510515096-members-of-texas-judicial-evaluation-committee-announced; Borys Krawczeniuk, Toomey, Casey Unveil Selection Process for Federal Judges, Standard Speaker (Apr. 27, 2011), http://standardspeaker.com/news/toomey-casey-unveil-selection-process-for-federal-judges-1.1138220; see supra note 24; see also supra notes 66–69 and accompanying text.

    [113].    Tobias, Senate Gridlock, supra note 3, at 2256. But see Archive of Judicial Vacancies (2010–15), supra notes 9, 56 (showing Wis. 7th Cir. vacancy open since 2010).

    [114].    28 U.S.C.A. § 371 (2012) (eligible if sixty-five and fifteen years service); see David Stras & Ryan Scott, Are Senior Judges Unconstitutional?, 92 Cornell L. Rev. 453 (2007); Tobias, Senate Gridlock, supra note 3, at 2256.

    [115].    Toomey picks one in four whom Casey and he suggest. Pennsylvanians for Modern Courts, Western District May Be Filled in 2015 (Mar. 2015); see supra note 69; sources cited infra note 142.

    [116].    GOP senators more often send one. Joseph Morton, Obama Nominates Omaha Attorney Rossiter to Federal Bench in Nebraska, Omaha World Herald (June 12, 2015), http://www.omaha.com/news/crime/obama-nominates-omaha-attorney-rossiter-to-federal-bench-in-nebraska/article_7517dc5c-1084-11e5-9f03-eb447e9aaa07.html. But see Tobias, Senate Gridlock, supra note 3, at 2251.

    [117].    See supra notes 4, 22–26 and accompanying text.

    [118].    He rarely uses it, as home state GOP members can retain blue slips and end processing. Goldman et al., supra note 3, at 16–18; Tobias, Senate Gridlock, supra note 3, at 2261; see supra notes 65, 71–72, 75–76.

    [119].    158 Cong. Rec. S4108 (daily ed. June 12, 2012) (Hurwitz was sixty-six); 149 Cong. Rec. S12,127 (daily ed. Sept. 29, 2003) (Carlos Bea was sixty-eight when Bush tapped him).

    [120].    See, e.g., 158 Cong. Rec. S8380 (daily ed. Dec. 21, 2012) (Judge Matthew Brann); 160 Cong. Rec. S1747 (daily ed. Mar. 26, 2014) (Judge Edward Smith).

    [121].    For appointee experiential data, see Alliance for Justice, Broadening the Bench (2015).

    [122].    157 Cong. Rec. S6027 (daily ed. Oct. 3, 2011). Obama elevated Justice Sonia Sotomayor, whom Bush père named to the S.D.N.Y. and Clinton elevated to the Second Circuit. 155 Cong. Rec. S9063 (daily ed. Aug. 6, 2009); 138 Cong. Rec. S12,417 (daily ed. Aug. 11, 1992); 144 Cong. Rec. S11,310 (daily ed. Oct. 2, 1998).

    [123].    Tobias, Senate Gridlock, supra note 3, at 2258; see supra notes 68–69, 122 and accompanying text.

    [124].    160 Cong. Rec. S283 (daily ed. Jan. 13, 2014) (Wilkins); id. at S3125 (daily ed. May 20, 2014) (Costa).

    [125].    For example, Bush appointed Floyd, and Bush père and Clinton named Sotomayor. See supra note 122.

    [126].    That was controversial. See supra note 26; Tobias, Senate Gridlock, supra note 3, at 2251 (nominating from state in a circuit other than one where a vacancy occurs, as this is a custom, not a rule). But see 28 U.S.C.A. § 44(c) (Supp. 2014).

    [127].    Shenkman, supra note 44, at 299–300; Tobias, Senate Gridlock, supra note 3, at 2261; supra note 118.

    [128].    Goldman et al., supra note 3, at 11–13; see Tobias, Senate Gridlock, supra note 3, at 2250–51.

    [129].    A study found the many steps take time. See Gordon Bermant et al., Judicial Vacancies: An Examination of the Problem and Possible Solutions, 14 Miss. C. L. Rev. 319, 332-333 (1994); Tobias, Senate Gridlock, supra note 3, at 2235.

    [130].    Tobias, Filling Judicial Vacancies in a Presidential Election Year, supra note 100, at 995.

    [131].    See supra notes 9, 44; see also supra text accompanying notes 102, 105.

    [132].    See supra notes 27–37 and accompanying text.

    [133].    Tobias, Senate Gridlock, supra note 3, at 2263; Neil A. Lewis, Senate Panel Backs Appeals Court Nominee, N.Y. Times (Jan. 30, 2003), http://www.nytimes.com/2003/01/30/ politics/30CND-JUDG.html.

    [134].    Hearings on Judicial Nominees Before the S. Comm. on the Judiciary, 114th Cong. (June 10, 2015); supra text accompanying note 29; Shenkman, supra note 44, at 303–05 (urging abolishing hearings that add little substance and changing questionnaires to omit “completeness traps”).

    [135].    See supra notes 6, 34–37, 80 and accompanying text.

    [136].    See supra notes 44, 46­–47.

    [137].    He did allow Stoll’s July 7 final vote. See supra notes 61–64 and accompanying text.

    [138].    See supra note 52 and accompanying text. If delay persists, Democrats can apply rather dramatic, confrontational notions. Obama may use the bully pulpit to hold the GOP accountable. Senators might protest with panel session boycotts. See supra notes 105, 109; infra note 145 and accompanying text.

    [139].    Chris Cillizza, 10 Senate Seats Most Likely to Switch Parties in 2016, Wash. Post (June 7, 2015), https://www.washingtonpost.com/politics/10-senate-races-most-likely-to-sw itch-parties-in-2016-elections/2015/06/07/d9215fbc-0d13-11e5-9726-49d6fa26a8c6_story. html; Heather Haddon, Presidential Battle Fuels Republican Worries over Senate, Wall St. J. (Dec. 23, 2015, 7:41 PM), http://www.wsj.com/articles/presidential-battle-fuels-rep ublican-worries-over-senate-1450917553; James Hohmann & Elise Viebeck, Trump Leads in Polls Because GOP Primary Voters Don’t Value Electability, Wash. Post (Aug. 4, 2015), https://www.washingtonpost.com/news/powerpost/wp/2015/08/04/the-daily-202-trump-lead s-in-polls-because-gop-primary-voters-dont-value-electability/.

    [140].    Even if Republicans win the presidency and chamber, Democrats may adopt payback strategies akin to concepts the GOP used in Obama’s first six years. See supra notes 3–83 and accompanying text.

    [141].    See David Stras & Ryan Scott, Navigating the New Politics of Judicial Appointments, 102 Nw. U. L. Rev. 1869, 1902–06 (2008) (discussing the benefits of “going public” and using the “bully pulpit” to ensure a smooth path to confirmation for judicial nominees); Tobias, Senate Gridlock, supra note 3, at 2261.

    [142].    See Michael Gerhardt, Judicial Selection as War, 36 U.C. Davis L. Rev. 667, 688 (2003); Carl Tobias, Postpartisan Federal Judicial Selection, 51 B.C. L. Rev. 769, 790 (2010); supra text accompanying notes 68, 115.

    [143].    Tobias, Filling the D.C. Circuit Vacancies, supra note 12, at 140; supra note 43 and accompanying text. If selection fails to improve, more judgeships will not help.

    [144].    Stras & Scott, supra note 141, at 1906; Senate Gridlock, supra note 3, at 2261.

    [145].    See supra note 138 and accompanying text. These may slow Obama nominees.

    [146].    Year-End Reports, supra note 97.

    [147].    See supra notes 44, 97, 143 and accompanying text. Some judges enjoy cordial relations with senators and urge them to fill vacancies. Tobias, Filling Judicial Vacancies in a Presidential Election Year, supra note 100, at 1003.

    [148].    Stephen B. Burbank, The Architecture of Judicial Independence, 72 S. Cal. L. Rev. 315, 316–17 (1999); see Tobias, Filling the Judicial Vacancies in a Presidential Election Year, supra note 100, at 1002. Unorthodox ideas, such as changing life tenure or electing judges, can apply but need legislation or constitutional amendment and, thus, are not feasible for 2016. Carl Tobias, Dear President Bush: Leaving a Legacy on the Federal Bench, 42 U. Rich. L. Rev. 1041, 1054 (2008).

Law, Universities, and the Challenge of Moving a Graveyard

Law, Universities, and the Challenge of Moving a Graveyard

Wendy Collins Perdue, Law, Universities, and the Challenge of Moving a Graveyard, 50 U. Rich. L. Rev. Online 3 (2015) (reviewing Carel Stolker, Rethinking the Law School: Education, Research, Outreach and Governance (2014)).

Click here to download .pdf

Book Review

Law, Universities, and the Challenge of Moving a Graveyard

Dean Wendy Collins Perdue *

Rethinking the Law School: Education, Research, Outreach and Governance
By Carel Stolker. Cambridge University Press, 2014. 454 pp. $125.00

+++ The last five years have been difficult ones for American legal education. With applications to law schools declining 40% nationally, many schools are struggling to maintain quality in the face of significant budgetary pressures. But one component of the legal-education world has been robust: there is a boom market in books, articles, reports, websites, and blogs filled with criticism and even anger at the current state of legal education. There are many villains in these narratives—greedy universities that suck resources, self-absorbed faculty who are indifferent to their students, and dishonest deans willing to misrepresent their current reality—and many victims—duped college graduates and lawyers leading miserable lives of tedium, long hours, and depression.

+++ Against this dark narrative genre, Carel Stolker’s new book, Rethinking the Law School, stands in sharp contrast. Having been both a law school dean and university president at Leiden University in The Netherlands, Stolker brings the perspective of a dean who has sought to innovate, and of a university president who has dealt with the political, academic, financial, and managerial complications of a modern university. The book offers a broad look at legal education around the world, along with a thoughtful exposition of the challenges facing law schools and law deans. Stolker is no cheerleader for the current state of legal education, but recognizing that “the nature, content and quality of legal education is a subject that flares up frequently and dies down again,”[1] he approaches the issues without the shrillness and anger that characterize some of the current commentary. He also leavens his realism with some welcomed humor, noting, for example that “changing a university is like moving a graveyard, you get no help from the people inside.”[2]

+++ Stolker comes from the European tradition which views higher education as a public good,[3] rather than primarily a private “economic investment to secure future private earnings.”[4] As a result, throughout the book, his primary concern is not that education consumers might not get the product that was advertised, but that society might not get the educated professionals it needs.

+++ Quality legal education and the good lawyers it produces play an important and sometimes underappreciated role in establishing the rule of law in developing economies around the world.[5] But the need for quality legal education is not solely a third-world issue. In 2001, the Japanese government concluded that continued economic growth would require more lawyers and a better legal education system. For Americans used to cheerily quoting Shakespeare about killing all the lawyers,[6] the idea that having more well-educated lawyers might be good for the economy seems startling. But the Japanese assessment derived from an understanding of the role of law and of lawyers:

For the people to autonomously form social connections as self-determinative beings, it is indispensable for them to receive the cooperation of the legal profession, which can provide legal services in response to the specific living conditions of each individual and his or her needs. As in the case of medical doctors who are indispensable for people’s health-care services, the legal profession should play the role of the so-called “doctors for the people’s social lives.”[7]


+++Stolker similarly observes that law “deeply affects human beings in their daily lives,”[8] and he quotes David Walker’s introduction to the Scottish legal system where he describes law as “an area in the field of studies of men’s relations with one another.”[9] The bottom line for Stolker is that law is “a condition for civili[z]ed living”[10] and that therefore quality legal education is as well. “No matter where you find yourself in today’s globali[z]ing world, good legal education and research are of utmost importance for social stability, the rule of law and economic growth,” he writes.[11]

+++ In Stolker’s view, good legal education is at its core an academic enterprise that belongs in the university—connected to the profession but separate from it.[12] This is not only because of the importance and complexity of law and its connections with other academic disciplines, but also because of the nature of what we educate lawyers to do. Stolker argues that good lawyers need more than technical expertise; they need what he calls an “academic attitude” of skepticism. Skepticism (not to be confused with cynicism) is at the core of the lawyer’s work: “A lawyer is bound to develop a routine s[k]epticism, taking no argument at its face value, no set of words as meaning what it seems to say. That is a condition of legal life.”[13] In a single sentence, Stolker captures much of what we mean by “thinking like a lawyer”: “[W]e teach students not only to look for the solution to a problem but also to seek out the problem in a solution.”[14]

+++ Beyond acclimating new lawyers to a mindset of skepticism, law schools should, in Stolker’s view, educate and not merely train lawyers.[15] Law has enormous social consequences and well-educated lawyers ought to be able to discern and evaluate the broader impacts of the structures they reinforce or create, and to “reflect on the wider world in which law functions.”[16] Nearly a hundred years ago, Professor Eugene Gilmore made a similar point in an address to the Association of American Law Schools. He put it this way: “The problem—How should I try this case?— and the problem—How should cases be tried?—are distinct problems” and our law schools should educate lawyers who can answer both questions.[17]

+++ Many critics of modern legal education believe law schools focus far too much on Gilmore’s second question and not enough on the first, and these critics are likely to join the chorus of disdain for much modern legal scholarship. Judges and practicing lawyers doubt the usefulness of much legal scholarship. They would like more articles that “tidy up after the judges” and fewer articles offering normative critiques. The criticisms of legal scholarship are not only from practicing lawyers who find it insufficiently practical, but also from academics in other disciplines.

+++ If practitioners think legal scholarship too theoretical, some academics consider it too rooted in the world of practice[18] and lacking a distinctive research methodology.[19] Moreover, they deem its normative character insufficiently academic. As Stolker notes, “Astrophysicists are interested in what black holes are, not in what they ought to be.”[20]

+++ Stolker takes on the critiques directly. He argues that law schools (and deans) should seek a balance among visionary scholarship that focuses on “playing with new ideas, perspectives and theories,”[21] and scholarship of a more professional character which is intended “to help judges and legislators in their task of keeping the law on track.”[22] He also criticizes the system of student-edited journals and argues for greater access to legal sources. What Stolker does not do is question the premise that law schools and law professors should devote time and energy to research and scholarship. Given the impact of law on all aspects of social life, Stolker thinks it beyond dispute that law is a subject that warrants serious academic study. “[L]aw is far too important, and too complex, not to be treated as an academic discipline,” he observes.[23]

+++ Treating law as an academic discipline and situating it within the university means that law schools must be understood within the context of the broader strategic challenges facing universities as institutions. Stolker does not shy from this issue and offers a clear-eyed and insightful discussion of some of those challenges of the modern university, including funding and regulatory pressures, diversification and internationalization, and “corporatization” of the enterprise. There was a time, Stolker notes, when “[t]he university was governed and administered, not managed.”[24] But no more. Today, students are seen as consumers, not co-creators of their education, and faculty are “knowledge providers” in a “human resource production industry.”[25] To his credit, Stolker’s description of the modern university is neither unduly nostalgic about a bygone golden era, nor bitter about modern realities. He outlines the challenges along with the compromises that universities make to survive. But underlying it all is a tone of respect for the core enterprise of universities: “adventurous research; . . . providing students with an inspirational education; . . . societal impact.”[26]

+++ Throughout the book, Stolker brings some welcomed historical, comparative, and cross disciplinary perspective. He notes that around the world, there are periodic controversies about “the nature, content and quality of legal education” which flare up and then die down,[27] citing complaints about legal education in various countries and at various earlier periods.[28] He quotes a 1931 report on Dutch legal education decrying the poor writing skills of young lawyers and the lack of adequate practical preparation,[29] which if read without noting the citation, one could easily assume was from a recent exposé on the ills of modern U.S. legal education. He also notes that other disciplines suffer their own periodic angst about teaching, scholarship, and identity.[30]

+++ As a sitting law dean, maybe this is just a simple case of misery loves company, but I do find comfort in the history and comparisons.[31] It is oddly reassuring to know that around the world, legal education is a topic thought to be sufficiently important to warrant controversy and that law deans everywhere wrestle with many of the same issues. And like Stolker, I agree that the persistence of the issues and concerns “does not mean that no progress has been made” but rather “how difficult the answers to these very old questions are.” [32]

+++ Some may be frustrated that a book entitled “Rethinking the Law School” does not purport to map out an agenda of changes. To be sure, Stolker offers ideas and suggestions on topics ranging from teaching materials,[33] to assessments,[34] to methods for enriching legal pedagogy,[35] along with his own personal tips on deaning.[36] But the emphasis in this book is on thinking about and understanding law schools, not an action agenda.

+++ Stolker says that he has written the book for his “fellow deans across the world,”[37] and I enthusiastically recommend it. I would particularly recommend it for deans who are several years into their deanship and are feeling a bit mired in the minutia of management and the challenges of survival during these last several turbulent years. Stolker does not gloss over the difficulties that law schools face, but contextualizes them in a way that is both bracing and inspiring. “There is much that has to be treasured, and there is much to be done.”[38] Indeed.


* Dean and Professor of Law, University of Richmond School of Law.

      [1].    Carel Stolker, Rethinking the Law School 138 (2014).

      [2].    Id. at 380 (quoting Geoffrey Boulton, Global: What Are Universities For?, University World News (Mar. 29, 2009), http://www.universityworldnews.com/article. php?story=20090326200944986.

      [3].    Id. at 44.

      [4].    Id. at 46.

      [5].    See id. at 275.

      [6].   William Shakespeare, The Second Part of King Henry the Sixth, act 4, sc. 2.

      [7].    Recommendations of the Justice System Reform Council—For a Justice System to Support Japan in the 21st Century, Justice System Reform Council (June 12, 2001), http://japan.kantei.go.jp/judiciary/2001/0612report.html.

      [8].   Stolker, supra note 1, at 97.

      [9].    Id. at 97. (quoting David M. Walker, The Scottish Legal System 2 (2001).

      [10].    Id. at 96.

      [11].    Id. at 32.

      [12].    See id. at 151.

      [13].    Id. at 144 (quoting Peter Birks, Editor’s Preface to 2 Pressing Problems in the Law: What Are Law Schools For? at xiv (1996).

      [14].    Id.

      [15].    Id. at 115.

      [16].    Id. at 146; see also id. at 147 (noting that students must “gradually develop a professional attitude, become aware of the social context in which law functions and, in conjunction with this, assume their social responsibilities”).

      [17].    Eugene A. Gilmore, Some Criticisms of Legal Education, 7 A.B.A. J. 227, 229 (1921).

      [18].    See Stolker, supra note 1, at 208.

      [19].    See id. at 204.

      [20].    Id. at 206.

      [21].    Id. at 219.

      [22].    Id.

      [23].    Id. at 97.

      [24].    Id. at 67.

      [25].    Id. at 52.

      [26].    Id. at 86.

      [27].    Id. at 138.

      [28].    Id. at 136, 138.

      [29].    Id. at 138.

      [30].    Id. at 189–90.

      [31].    See id. at 138.

      [32].    Id. at 138–39.

      [33].    Id. at 169–70.

      [34].    Id. at 185–87.

      [35].    Id. at 197–99.

      [36].    See, e.g., id. at 344 (“spend as much as you can on food”); id. at 362 (“stay physically and emotionally close to your teams”); id. (“keep bureaucracy away from academics as much as possible”); id. at 363 (“[a] university need some ‘characters’, but not too many”).

      [37].    Id. at 11

      [38].    Id. at 387.

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