Federal substantive criminal law and constitutional remedies might seem to be distinct bodies of law. But since the closing decades of the twentieth century, the Supreme Court has demonstrated an increasing unwillingness in both areas to impose either direct or indirect sanctions on persons who violate the law but whose conduct is not necessarily indicative of an unlawful or antisocial intent. Instead, the Court has tended to narrow liability or remedy to instances in which there is evidence that the regulated actor contravened not just the law on the books but also a social understanding of legality.
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