Note

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.

European Corporate Choice of Law

Between 1999 and 2003, three landmark decisions of the European Court of Justice—Centros, Überseering, and Inspire Art—struck down laws restricting the ability of corporations to exercise their right to free establishment under the EC Treaty. The most significant impact of this freedom is the ability of a corporation to choose its state of incorporation. Prior to the three landmark decisions, continental Europe had effectively prevented such choice by forcing a corporation to be incorporated in the state where its central management was located, the so-called real seat doctrine. Yet the revolution in corporate choice of law expected by many scholars after the three landmark decisions did not occur. This Note argues that this failure resulted from indirect restrictions imposed by continental countries which removed the incentives motivating corporate mobility. Three new decisions by the European Court of Justice, de Lasteyrie du Saillant, Marks & Spencer, and SEVIC Systems, have attacked these indirect restraints. The Court’s analysis in this second wave of liberalization demonstrates a willingness to overturn not only laws that directly restrict corporate freedom of establishment but also statutes that reduce corporate incentives to seek more efficient governing law. While the first wave of landmark decisions may have been more significant jurisprudentially, the second will be far more influential on the actual exercise of freedom of establishment. The effect of the second wave cases will be a European corporate landscape that looks much more like that of the United States than of Europe itself last year.

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