The Volokh Conspiracy

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The constructive trust solution to Henderson v. United States


The Court will hear argument this morning in Henderson v. United States, the Rule 41(g) case I mentioned last week. But I forgot to mention in that post that one of my former students has an insightful student comment about this problem, published in the University of Chicago Law Review.

It's actually cited in Henderson's briefs, and it's Frederick C. Benson, The Property-Disability Dilemma: Property Insights into Felon Gun Rights. Benson ultimately suggests that courts can and should recognize a "constructive trust," with a trustee chosen by the defendant, whose duties are limited to liquidation and disbursement, and that this will not rise to the level of constructive possession.

I haven't finished analyzing the case on my own yet, but at an initial impression, this seems quite sensible to me.