It's In the Bag

The Greenbag has released its 2014 Exemplary Legal Writing list. Drew Justice, whose excellent brief I talked about here, made the list. And so did Justice Willett of the Supreme Court of Texas for his dissenting opinion in a forfeiture case, El-Ali v. State.

The short read is an excellent example of the conversational style of opinion-writing that has become the hallmark of some of the strongest writers on the courts, including Justice Kagan. Justice Willett's entire dissent is a gem (and quite persuasive), but my favorite excerpt is probably this one:

This is the story of a Chevrolet truck, but to some observers it evokes less Chevy than Kafka. The modern Texas asset-forfeiture regime bears little resemblance to what we reviewed in 1957 when we last visited this subject.In my view, the civil-forfeiture realities of 2014—the prevalence, procedures, and profitability—compel us to reexamine the constitutional protections due innocent property owners.

The stakes are grave indeed, as asset-forfeiture cases threaten not merely property but, more fundamentally, property rights, something we have recently (and unanimously) extolled as essential to “freedom itself.” Civil forfeiture springs from the Legislature's broad police power, but as we recently made clear, police power cannot go unpoliced.

Put simply, this important subject deserves attentive constitutional reconsideration, if not recalibration. Much has changed since our Eisenhower-era decision in Richards. Forfeiture 2014–style is not forfeiture 1957–style. But even if the Court were to reaffirm its ruling from 57 years ago that due process is unoffended, 21st-century practice merits 21st-century scrutiny. If the State of Texas wants to ensnare guiltless citizens and seize their homes and other property, it must do so—always—within the bounds of our Constitution.

428 S.W.3d 824, 825-26 (Tex. 2014) (Willett, J., dissenting).

Happy reading, and happy Friday!