Abstract

Responding to concerns about organized crime, Congress enacted the Racketeer Influenced and Corrupt Organizations Act of 1970, Pub. L. No. 91-452, tit. IX, 84 Stat. 941 . Under the civil provisions of the statute, a private litigation plaintiff can recover trebled damages and attorney fees if he or she can demonstrate that the defendant engaged in a "pattern" of "racketeering activity" through the commission of, or conspiracy to commit, at least two "predicate" crimes within a ten-year period. ;With the continued vitality of criminal RICO as a weapon against organized crime, the statute also has been used in a civil context against parties who seek to exercise their First Amendment rights, as exemplified in a series of cases involving anti-abortion protestors. Concomitantly, the courts have expanded the scope of civil RICO even when a claim of economic damage is tenuous or non-existent. The question thus arises whether civil RICO might exist as a constitutionally permissible rule as a matter of positive law--that is, law enacted by a recognized, authoritative governmental body--yet contravene the underlying principles of the American regime embodied in the United States Constitution and expressed in The Federalist, arguably the seminal work of American political thought. ;The dissertation concludes that a discordance exists between the application of civil RICO rules, in some cases, and the principles upon which the American regime is founded, as explained in The Federalist. For example, The Federalist suggests that factions should not be destroyed by "removing the causes"; instead, the effects of factions should be mitigated. Yet, according to Justice Thurgood Marshall's dissent in Sedima, S.P.R.L. v. Imrex Company, 473 U.S. 479 , " any a prudent defendant, facing ruinous exposure, will decide to settle a case with no merit...RICO has been used for extortive purposes, giving rise to the very evils that it was designed to combat." In other words, civil RICO "chills" defendants' desire to exercise free speech; it effectively strikes at the causes of factions by stemming dissent beforehand, not mitigating effects afterwards