Recent scholarship has argued that post-institutional theories of distributive justice, specifically Rawlsianism, are compatible with a principled commitment to corrective justice. We argue that however attractive on independent or pre-institutional moral grounds a principled commitment to corrective justice and its corresponding model of tort law may be, it is misleading to think that the Rawlsian post-institutional conception of distributive justice is, at the level of principle, consistent with such an independent commitment. We argue that holding the truth of a maximizing theory of distributive justice in conjunction with a principled commitment to corrective justice is inconsistent. The attempt to hold both positions as true may flow, we suggest, from an unjustified presumption about the compatibility of post-institutional – particularly, maximizing – theories of distributive justice and other non-maximizing moral commitments which one might hold or view as appealing on grounds independent of one’s commitment to distributive justice. In our view, the values enshrined in Rawls’s two principles of justice (taken in lexical order) reflect the deontological features of Rawls’s original position. The principles of justice themselves, however, once adopted, function as consequentialist maximizing principles, taken in lexical priority, in selecting between competing complete schemes of legal and political institutions. While the tension between the corrective justice and the utilitarian or wealth maximization conceptions of tort law has long been discussed and is well understood, the relationship between the corrective justice conception of torts and post-institutional theories of distributive justice (in particular, Rawlsianism) has only recently received sustained attention. Recent articles by Stephen Perry and Arthur Ripstein emphasize the compatibility – or even the necessity – of corrective justice (i.e., as an “independent” component of justice) within the Rawlsian distributive scheme. We argue, contra this emerging view, that distributive justice, in particular Rawlsianism, conflicts at the level of principle with corrective justice, and that it is inconsistent to remain (as a matter of principle) independently committed to both, given the Rawlsian view of property. In short, our central claim is that Rawlsian ideal theory is best understood as adopting the consequentialist (outcome-oriented) theory of tort law.
A Fourth Amendment Metamorphosis: How the Fourth Amendment Remedies and Regulations Facilitated the Expansion of the Threshold Inquiry
United States v. Bond and United States v. Kyllo significantly departed from the Supreme Court’s prior Fourth Amendment jurisprudence. The definition of a Fourth Amendment search now captures a broader universe of law enforcement conduct. While this enlargement of the Fourth Amendment search inquiry has heretofore puzzled scholars, this Note argues that this enlargement may be consistent with the dynamic relationship that exists between rights and remedies. The erosion of Fourth Amendment remedial scheme “by making the exclusionary rule less available” has facilitated an expansion of the Fourth Amendment right.
This Note further argues that the dynamic between rights and remedies does not fully explain Bond and Kyllo. A second dynamic is in place that helps explain why the expansion of the Fourth Amendment right targeted the scope of conduct the Fourth Amendment is understood to regulate rather than the protections that attach when conduct is captured by the threshold inquiry. The Note argues that the rigor (or lack thereof) of these protections helps shape and define the threshold inquiry much the way constitutional remedies help shape and define constitutional rights. The corrosion of such protections in recent jurisprudence enabled the expansion of the threshold inquiry evidenced in Bond and Kyllo.
“True Threats” and the Issue of Intent
What mens rea, if any, is required for threatening speech to be constitutionally criminalized? Must the speaker have intended for his communication to be threatening? In Virginia v. Black (2003), the Supreme Court for the first time provided a definition of “true threats,” a categorical exception to the First Amendment. However, the Court failed to clearly answer the above questions. As a result, lower courts have interpretedBlack’s language to reach contradictory results regarding the issue of intent. Consequently, speech that is constitutionally protected in one jurisdiction may be criminalized in another. Such controversy and confusion is not new to the jurisprudence. Since the Court’s decision in Watts v. United States (1969), which created the “true threats” exception, lower courts have disagreed over the proper intent standard for threatening speech. Instead of clarifying the doctrine, the Court’s decision in Black has only served to further muddy the jurisprudence. When Black was decided, the overwhelming majority of courts had settled on an objective intent standard; however, the Court’s language in Black has cast some doubt on the propriety of that approach. This Note will examine the issue of intent and its disputed place in the true threats jurisprudence from the debate’s inception to the present day. Moreover, the impact of Black will be elucidated and explored. Finally, this Note suggests that when the Court addresses the issue of intent again, it should adopt a standard that requires the government to prove that the speaker intended for his communication to be threatening.