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   OVERCOMING PROCEDURAL BOUNDARIES(1)
OVERCOMING PROCEDURAL BOUNDARIES(1)

Issachar Rosen-Zvi [FNa1]
Talia Fisher [FNaa1]
Virginia Law Review,March, 2008

Introduction ............................................................... 80
I. Justifications for the Civil-Criminal Divide in Procedure ............... 87
  A. The Utilitarian Justification ......................................... 88
  B. The Egalitarian Justification ......................................... 91
  C. The Expressive Justification .......................................... 93
  D. State-Centered Justifications ......................................... 96
    1. The Political Oppression Argument ................................... 96
    2. The Liberal State Argument .......................................... 97
II. Modern Procedure and Its Discontents ................................... 98
  A. The Utilitarian Justification Reconsidered ............................ 99
  B. The Egalitarian Justification Reconsidered ........................... 101
  C. The Expressive Justification Reconsidered ............................ 108
    1. The Expressivity of Substantive Law and Its Effect on Procedure .... 109
    2. The Expressivity of Procedure ...................................... 114
  D. The State-Centered Justifications Reconsidered ....................... 116
    1. The Political Oppression Argument .................................. 116
    2. The Liberal State Argument ......................................... 118
  E. Summary .............................................................. 121
III. The Civil-Criminal Puzzle: Comments on the Literature ................ 121
  A. Identifying Punitiveness: An Exercise in Futility .................... 122
    1. Practical Obstacles ................................................ 124
    2. Normative Obstacles ................................................ 129
  B. Heightened Constitutional Protections in Civil Procedure ............. 132
IV. Crossing the Civil-Criminal Divide: An Alternative Model for Procedure  133
  A. Balance of Power ..................................................... 134
  B. Severity of the Sanction ............................................. 138
  C. The Proposed Procedural Model--An Illustration ....................... 141
  D. The Normative Appeal of the Proposed Model ........................... 145
  E. Constitutional Challenge ............................................. 151
Conclusion ................................................................ 154

*80 "[T]he idea that a criminal prosecution and a civil suit for damages or equitable relief could be hashed together in a single criminal-civil hodgepodge would be shocking to every American lawyer and to most citizens." [FN1]


Introduction
THE Blackstone Ratio famously holds that it is "better that ten guilty persons escape, than that one innocent suffer." [FN2] But consider the following propositions: it is better that ten taxpayers avoid paying their taxes than one overcharged taxpayer go bankrupt. Or better that ten defaulting mortgage holders avoid paying their debt than one wrongly charged debtor be evicted from her place of residence. Or even, it is better that ten dangerous mentally ill persons roam the streets than one harmless mentally ill person be involuntarily committed to a mental institution. While many consider Blackstone's maxim a truism, the other statements would surely be dismissed by most as ludicrous. The divergence in reactions is the result of the widely accepted, albeit oversimplified, distinction between the civil and criminal spheres. The civil-criminal *81 divide is inherent in our legal thinking [FN3] and has been a hallmark of English and American jurisprudence for hundreds of years. [FN4] This fundamental taxonomy is manifested in, among other places, our bifurcated procedural system, which offers generous protections to people and institutions accused of crimes and misdemeanors [FN5] but is tightfisted with regard to similar guarantees for civil defendants. This Article will challenge the civil-criminal rift in the realm of procedure. [FN6] It will highlight a fundamental shortcoming of our legal system that stems from its failure to provide adequate procedural protections to individuals who are sued by the government or large organizational entities and face severe civil sanctions, combined with its sweeping procedural safeguards for people and institutions facing only trivial criminal sanctions. The Article will also point to the absurdity of granting identical procedural protections to big corporations and individuals involved in similar civil lawsuits or facing similar criminal charges, in the name of abstract and uncritically accepted notions of fairness and due process.
Until recently the distinction between civil and criminal law and procedure was widely accepted and was largely free from scrutiny. *82 In the last few decades, however, this distinction has been frequently questioned, and its general acceptance has begun to erode. [FN7] Two complementary processes brought about the significant blurring of lines between the two spheres. First, the criminal law has gradually encroached on areas previously considered purely civil, with the appendage of a multitude of regulatory crimes to the federal criminal code. [FN8] Additionally, civil law has similarly encroached on the criminal law, marked by an increase in punitive sanctions applied in civil proceedings. [FN9] This conceptual smudging has prompted significant normative concerns requiring a rethinking of the very justification for the distinction between civil and criminal law and procedure; a sound normative rationale for this distinction is vital for maintaining a system that distinguishes civil from criminal cases and assigns appropriate procedures to each. This is crucial for both efficiency and due process reasons: applying criminal procedure, with its cumbersome arsenal of constitutional protections, to civil matters is a very costly prospect that would result in a great waste of public resources; at the same time, applying civil procedure to matters of a criminal nature might result in a serious miscarriage of justice due to the absence of procedural safeguards against wrongful conviction.
*83 Blurring the civil-criminal divide has an additional negative aspect: it distorts the legislative decisionmaking process by giving the government an incentive to make bad substantive law as a way to exploit procedural advantages and evade procedural obstacles. [FN10] First, legislatures may have the incentive to expand the scope of criminal liability in order to take advantage of procedural devices that are otherwise unavailable, such as breaking into a house and making an arrest [FN11] or seizing property based on an ex parte warrant. [FN12] At the same time, legislatures may also try to avoid the extensive rights granted to defendants in criminal proceedings. Given the high costs of criminal trials and the difficulty in securing convictions, the government has ample incentives to resort to civil alternatives in order to redress criminal behavior. Forfeiture is one case in point: the government regularly brings civil forfeiture actions alongside criminal prosecution in order to avoid granting defendants criminal procedural protections. [FN13]
Many solutions have been suggested to address the negative consequences of allowing the legislature to apply civil and criminal procedure selectively. Some have proposed simply ignoring the *84 "civil" or "criminal" label Congress has attached to a particular sanction and to instead grant or deny enhanced procedural protections based on the punitive or nonpunitive nature of the sanction. [FN14] Others have recommended setting constitutional constraints on making new substantive criminal law [FN15] or, alternatively, extending some of the constitutional protections currently applied only in criminal proceedings to civil matters as well. [FN16] Another suggestion has been to expand the intermediate category between the civil and criminal spheres that covers punitive civil sanctions. [FN17] Prominent scholars such as Professors Bob Cover, Owen Fiss, and Judith Resnik went so far as to question the very distinction between "civil" and "criminal" procedure. [FN18] Following in their footsteps, we will propose to do away with the civil-criminal divide in procedure altogether and to replace it with a different scheme. We will argue that all the rationales provided hitherto for the procedural division along civil-criminal lines are obsolete, if not completely unfounded. We will propose, therefore, to cut the Gordian knot tying substance to procedure and replace the current bifurcated civil-criminal procedural regime with a model that runs along two axes that are more compatible with the actual goals of our justice system: the balance of power between the parties and the severity of the sanction or remedy.
The first axis differentiates between parties the model classifies as "individuals" (which would include small businesses) and "institutional entities" (composed of both governmental bodies and large organizational entities). One set of procedural rules would govern symmetrical litigation-- that is, litigation in which the parties *85 are either both institutional entities or both individuals; a second set of rules would govern asymmetric litigation, or litigation involving an individual on one side and an institutional entity on the other. [FN19] The second axis measures the impact of an adverse decision on the defendant, irrespective of whether the substantive legal regime governing the dispute is civil or criminal. The more severe the sanction or remedy, the greater the procedural protections that are available.
Using these two parameters, our proposed model will map out the entire procedural landscape. The distribution of procedural safeguards yielded by this model will diverge from that prevailing under the existing regime. For example, criminal defendants facing lenient sanctions (such as fines or other monetary criminal sanctions) would enjoy less rigorous procedural protections, and the standard of proof would be lowered from beyond a reasonable doubt, with the degree of change commensurate with the balance of power between the parties. Conversely, the procedural safeguards in asymmetrical civil cases would be augmented according to the severity of the remedy. In cases of monetary remedies, the standard of proof would be raised from preponderance of the evidence to clear and convincing proof, and the standard of proof for civil sanctions entailing a deprivation of liberty, such as civil commitment, might be raised even to beyond a reasonable doubt.
From a theoretical perspective, the propositions raised in this Article are sobering, and their implications extend far beyond the mere construction of a specific procedural model. Indeed, the Article will offer a new conceptual framework for procedural analysis. The civil-criminal divide has dictated not only the path research has taken, but the very way the entire discipline is organized. There are (almost) no general proceduralists, only criminal proceduralists and civil proceduralists who, like the blind men in John Godfrey Saxe's The Blind Men and the Elephant, "see" only part of the picture. *86 [FN20] As a general matter, criminal procedure scholars are focused exclusively on civil law's infiltration into criminal law territory and the due process problems this creates. Civil procedure scholars, to the extent that they are at all interested in the civil-criminal divide, tend to focus on the lack of sufficient procedural guarantees in the civil sphere. By approaching the question from a purely proceduralist perspective, we will have overcome the many blind spots in the current literature, thereby facilitating a more comprehensive appreciation of and solution to the problems.
The Article will not challenge (at least not directly) the distinction between substantive criminal law and civil law but rather will focus solely on procedure. [FN21] It will argue that to the extent that detaching the two spheres is justified in substance, a parallel split in procedure is not necessarily entailed. We will argue that dissociating substantive civil and criminal law from procedure would better serve the goals of both. From a procedural standpoint, casting off the fetters of the legislature's obsolete categorizations would better realize the underlying objectives of the procedural system. From a substantive perspective, our proposed procedural model would decrease the ability of federal and state legislators to "civilize" some sanctions that belong in the criminal sphere while "criminalizing" other sanctions that belong in the civil sphere in order to reap procedural advantages.
Finally, although we believe our model to be a step forward, it is not as radical as it might appear at first glance. Many of the variants we will identify as essential to the functioning of our procedural model already play a significant role in judicial decisionmaking. Today, however, this process occurs in a rather haphazard and ad hoc manner, in disregard of the bigger picture. Our model will perform the valuable service of crystallizing and systematizing certain intuitions about the role of procedural law that have existed *87 for more than a century and will take these propositions to their logical conclusion.
The Article proceeds in four parts: Part I will present a survey of the many justifications that have been offered for the existing bifurcated procedural system, so as to provide a complete picture of the existing taxonomy of the system we propose to transform. Part II will critique the prevailing regime, challenging the continued predominance of the civil-criminal dichotomy in our procedural thinking and showing that the arguments used for justifying it are either obsolete or are outright erroneous. Part III will consider the many solutions offered by other legal scholars to the problems of the civil-criminal procedural divide, exposing the weaknesses and difficulties that render each solution impractical. In Part IV, we will put forth our proposed alternative procedural model, arguing and illustrating that it better realizes the rationales that justify the current procedural regime. We will conclude with some remarks about the feasibility of such a reform.


I. Justifications for the Civil-Criminal Divide in Procedure
Taxonomies play a vital role in the smooth operation of any legal system. Identifying the particular set of legal rules that govern a specific set of facts is contingent on prior classification of such facts into discrete categories. [FN22] Classifications serve as conceptual shortcuts, helpful tools that assist in ordering and organizing the chaotic universe of facts and rules. They are designed to achieve certain goals without having to revert to the logic and values underlying the classification each time the applicable rule must be identified. But important as these categories may be to the working of a legal system, they are equally harmful if reified (or "thingified" to use Felix Cohen's neologism [FN23]) and, therefore, applied mechanically *88 without concern for the inherent dynamism of law. [FN24] It is critical, in other words, not to essentialize legal categories or accept them as givens but rather to engage in an ongoing process of reexamination in which the values underlying these categories are identified and taxonomies that best promote these values are sought. [FN25]
Legal categories are crude by nature. The "border line" between categories is inevitably blurred and somewhat arbitrary. [FN26] Proving that a certain classification is not working in every case does not negate its usefulness in toto. The mere existence of some margin of error does not render the taxonomy invalid and undesirable. Therefore, in order to substantiate our claim that the civil-criminal taxonomy in procedure should be abolished, it is not enough to simply demonstrate some small degree of failure in realizing its goals in certain cases. Instead, we must show that its overall harmful effects outweigh its benefits and point to an alternative method of classification that is more in line with the objectives of procedure.
Many justifications have been offered for the bifurcation of procedure into criminal procedure and civil procedure. These rationales can be roughly divided into four lines of argument based upon either normative or functional foundations: utilitarian, egalitarian, expressive, and state-centered.

A. The Utilitarian Justification
The first line of argument invoked to justify the civil-criminal procedural dichotomy rests on utilitarian grounds. The civil-criminal split, it is argued, is premised on the distinct functions of civil procedure, on the one hand, and criminal procedure, on the other, with respect to the allocation of risks of error between parties to litigation. In the adversarial system, the court lacks autonomous investigatory authority and must rely upon the parties to *89 gather and present the facts underlying the case. [FN27] The realization of the goals of both criminal and civil litigation is contingent upon accurate fact-finding by the court. Therefore, the rules of procedure are designed to promote the reliability and accuracy of the fact-finding process in both types of proceedings. [FN28] From the criminal perspective, convicting innocent defendants impairs the social goals of deterrence, incapacitation, and rehabilitation. In addition to the pain and suffering inflicted on the person convicted, wrongful convictions waste limited resources and instigate underparticipation in lawful and socially beneficial activity. Moreover, exposure to the risk of wrongful conviction impairs deterrence, since it lowers the marginal cost of choosing to engage in criminal behavior; [FN29] when innocent people are systematically exposed to the risk of criminal sanctions, the price of criminal activity becomes cheaper in relation to noncriminal activity. [FN30] Conviction of the innocent may also allow the real offenders to continue to roam the streets, as well as prevent their rehabilitation. [FN31] Like wrongful convictions, wrongful acquittals also impair the ends at which criminal punishment is aimed. False acquittals result in underdeterrence, as prospective offenders learn that "crime pays." Thus, either way, the criminal verdict must be accurate and rest upon factual truth. Similar arguments can be made regarding the detriments of inaccurate fact-finding in the civil sphere. [FN32] Accuracy and error avoidance in determining liability are crucial both for compensatory purposes and for achieving optimal levels of deterrence.
The notion of error avoidance, however, is only one component of accurate adjudication. Since court rulings are necessarily probabilistic in nature and errors can never be completely eliminated, *90 another variable that must be taken into consideration is error allocation. [FN33] The criminal procedure and civil procedure systems diverge with regard to the allocation of risk of error between the litigating parties. The premise underlying criminal procedure is that wrongful convictions entail significantly higher costs than do wrongful acquittals, both for the defendants and for society at large. In light of this calculus, the criminal rules of procedure are aimed at reducing the likelihood of erroneous convictions [FN34] by compromising on the certainty of the innocence of the acquitted. [FN35] The rules allocate the risk of error between the defense and prosecution in a way that promotes errors in favor of the defendant (considered less costly) at the expense of errors in favor of the prosecution (which entail more substantial costs). [FN36]
Likewise, in the civil sphere, the procedural rules and standard of proof affect the comparative frequency of each type of error (that is, errors in favor of the plaintiff and errors in favor of the defendant) and reflect the system's assessment of the social costs associated *91 with each type of error. [FN37] Unlike in the criminal context, however, the underlying assumption of civil procedure is that the two types of error entail equal costs. Undeserved losses are "equally regrettable," whether incurred by the plaintiff or by the defendant. [FN38] This is what justifies and even necessitates that civil procedure be aimed at allocating the risk of error between plaintiff and defendant in a roughly equal manner. [FN39]

B. The Egalitarian Justification
A second line of argument raised to justify the civil-criminal divide in procedure is based on egalitarian considerations. In our adjudicatory system, both civil and criminal disputes are resolved by a neutral umpire following an adversarial display of collected facts and the presentation of legal arguments by each of the parties. This system is lauded by many as the best way to arrive at an accurate and just resolution of legal disputes. [FN40] But the adversarial system has its Achilles' heel: its inability to satisfactorily remedy potential inequalities between the parties. [FN41] Because the adversarial system relies upon the parties to produce the facts, examine and cross-examine witnesses, and present legal arguments on their own behalf, the parties must be at least somewhat equally capable of making their cases for the system to function properly. If, due to a lack of resources, one party is unable to uncover evidence or is less skilled in developing legal arguments, the outcome might be skewed in favor of her better-equipped adversary. [FN42]
*92 Here, it is argued, lies a major difference between criminal and civil litigation. One of the defining aspects of the criminal process is that the government is invariably the plaintiff. [FN43] There are several features that distinguish litigating against the government from litigating against a private party. One is the asymmetry of power and resources between the parties. The government has at its disposal vast resources, trained police detectives and officers, and highly skilled counsel. It is able bring an enormous amount of pressure, formal and informal, to bear on the defendant. The government also sets the basic rules of the game for the entire citizenry. The defendant, in contrast, is an individual "unfamiliar with the practice of the courts, unacquainted with their officers or attorneys, often without means, and frequently too terrified to make a defense if he had one." [FN44]
Another facet distinguishing the government as plaintiff from private parties is that the former has a monopoly over the legitimate use of force. [FN45] It can exercise its policing authority to investigate the suspect, search and seize his property, and, in some cases, put him behind bars. This power, alongside other powers, is a mighty tool for securing information necessary for a successful prosecution. Therefore, procedural safeguards for the accused are required in criminal litigation in order to level the playing field and restore the balance of power (or, at a minimum, ameliorate the excessive inequality) between the government plaintiff and the defendant and, thus, to produce more accurate and just legal outcomes.
The civil process, by contrast, is typically presumed to be a dispute between two private parties who have roughly comparable capabilities. The civil paradigm assumes a context of fairly matched adversarial encounters. [FN46] Obviously, this assumption is not always *93 true. Frequently one party has an economic advantage over her adversary. Nevertheless, there is no systematic or structural bias in favor of either one of the parties. Unlike in the criminal process, in which the government is always at an advantage, in civil litigation, the potential imbalance of power is divided (more or less) equally between plaintiffs and defendants. In some cases, the plaintiff is better off, while in others, it is the defendant who has the upper hand. Accordingly, procedural fairness mandates that no special procedural safeguards and advantages be provided to either the plaintiff or the defendant. On the contrary, such procedural advantages and safeguards to one party at the expense of the other would constitute a serious breach of the equality principle and thus undermine due process.

C. The Expressive Justification
The third line of reasoning for the separation of civil and criminal procedure involves the expressive function of law. Expressive theories of law are concerned with the expression of collective attitudes through legal action. [FN47] The expressive function of criminal law is particularly potent. Criminal law embodies a central intersection between the individual and the state. It serves as a natural arena for clarification of, and reflection on, social values. Given that criminal law is the source of momentous social norms, its violation elicits strong collective disapproval. Criminal conviction *94 sends a message of condemnation of the offender on the part of the community in whose name the conviction is secured. The punishment imposed on the offender does not serve only retributive and deterrent purposes. Rather, it also operates expressively in its capacity as a device for communicating attitudes of resentment and indignation toward the convicted person and condemning his or her wrongdoing. [FN48] This expressive element is what distinguishes, according to philosopher Joel Feinberg, mere "penalties" or "price tags" from true "punishment." [FN49] Indeed, punishment expresses collective disapproval of the offense and lays moral blame on the offender, which has a significant negative impact on his or her social status and reputation.
A significant distinction between civil and criminal law arises in this context. Civil liability and sanctions usually relate to conduct devoid of, or at least bearing low, moral culpability and, as such, are untainted by moral condemnation and stigma. [FN50] Criminal liability, in contrast, carries with it a powerful stigma, which is painful in and of itself, regardless of whether it is accompanied by deprivation of liberty or property. [FN51] This stigma persists long after the sentence has been served and tends to spread from the stigmatized individual to his close relations. [FN52] Indeed, from a purely instrumental perspective, the material or physical loss suffered by a party to a civil action can be as harsh as that incurred in the criminal process. One may lose more money in civil litigation or on the stock market than the amount of a fine imposed in criminal proceedings. The incarceration *95 of a defaulting debtor or the confinement of a witness in protective custody has physical aspects similar to the imprisonment of a convict. [FN53] The eviction of a tenant, the foreclosure of a home, the forfeiture of an asset, and certainly the removal of a child from parental custody are all severe sanctions imposed in the framework of civil proceedings. But there is a fundamental element that distinguishes all of these sanctions from criminal punishment: the blame and community condemnation associated with the infliction of criminal punishment. [FN54] Therefore, even if civil law could generate deterrence similar to that produced by criminal law, "it may not be able to perform as successfully the socializing and educative roles" because it would not provide the same moral directive that is associated with criminal law. [FN55]
Based on this notion of criminal law as the locus of blame and stigma, Professor Carol Steiker offers a two-pronged rationale for the need to maintain a separate and more demanding procedural regime for the imposition of criminal liability and punishment. [FN56] First, she emphasizes that criminal punishment reinforces and even creates attitudes of moral condemnation toward the offender within her own community. Even more profoundly, criminal punishment has the capacity to reach inside the self and alter one's self-perception, to persuade a person to accept and make one's own the condemnation expressed by one's conviction and punishment. [FN57] These features of criminal punishment are so detrimental to the individual and her autonomy that we must make sure they are not "inflicted erroneously." [FN58] Thus, the rationale for placing substantial procedural barriers on the imposition of criminal liability is *96 the crucial need to protect the individual from the harmful aspects of blame and stigma.
Second, Steiker argues that the blaming function of criminal law, despite its evident risk, is also what makes criminal law so valuable, for it enables the state to generate feelings of moral indignation toward the offense and the offender and convey them to the relevant community. For criminal punishment to be able to carry out its blaming and stigmatizing functions, it must be distinguishable from all the other sanctions that the government may impose on its citizens. Special procedures therefore protect criminal law from dilution, making it "more, rather than less, powerful." [FN59]

D. State-Centered Justifications
The fourth and final type of justification for the civil-criminal distinction focuses on the government that inflicts the punishment, rather than on the governed who incur it. State-centered justifications can be subdivided into two central arguments: the political oppression argument and the liberal state argument.
1. The Political Oppression Argument
The political oppression argument maintains that the imposition of criminal punishment by the state presents a particularly daunting political threat to liberty and therefore special procedural safeguards are required to prevent the state from abusing this power. Under this argument, criminal law offers special temptations for abusive political regimes as well as rent-seeking law enforcement officials, [FN60] which stems, in part, from the harsh penalties at the state's disposal in criminal proceedings, including severe monetary sanctions, physical restraint, and occasionally capital punishment. [FN61] The appeal of criminal law for a bad government, however, goes *97 beyond the availability of such sanctions: the criminal justice system links the power to inflict pain with the authority of moral judgment, thus enabling the government not only to impose suffering but to do so with "a self-conscious attitude of moral superiority." [FN62] Penal sanctions have the capacity to enlist the community's moral sense, holding the convicted person up to hatred, scorn, and moral condemnation. It is no wonder, therefore, that governments are tempted to abuse the criminal justice system. The administration of criminal punishment enjoys almost unanimous support in every society, providing the government with a powerful and legitimate instrument of coercive social control. If abused, criminal administration enables governments to eliminate political opposition in a way that is regarded as legitimate by the relevant political community. [FN63] Throughout history, the argument suggests, governments have exploited the criminal law apparatus to disable political opposition and unleash malice on members of identifiable groups, and substantive and procedural limitations on the criminal process emerged to respond to these temptations. [FN64]
2. The Liberal State Argument
The second state-centered argument that a separate procedural regime is justified for the criminal law is to legitimize the exercise of state power. Any version of liberalism will insist on the individual's moral standing and rights as an autonomous agent who is capable of deciding on her actions in light of her own conception of good. Such autonomous agents should be allowed to pursue their goals uninhibited by uninvited state interference. [FN65] The liberal state, for its part, is committed to ideological neutrality toward the different conceptions of good. Criminal law and criminal punishment constitute a significant exception to this principle and raise *98 issues of political legitimacy. [FN66] By punishing a person, the state not only strips him of property and liberty or otherwise inflicts pain and humiliation, but it also brands him as morally culpable. In so doing, it acts in a way that exceeds its ordinary role and authority in a liberal democracy; it interferes with the autonomy of its citizens and engages in moral condemnation, a function regarded as alien to the liberal state. Professor Antony Duff argues that the state has a legitimate interest in preventing conduct that harms individuals and infringes on their rights, and it may use criminal law for that purpose, "[b]ut it has no such proper interest in its citizens' moral character--in the condition of their souls; it should not use the coercive power of the criminal law as a means of moral reform to make its citizens morally better." [FN67] Criminal procedure plays a vital role in legitimizing the state's intervention in defendants' autonomy and its infliction of moral condemnation. This political function of criminal procedure distinguishes it from civil procedure. Unlike its civil counterpart, the aim of the criminal process is not to settle a dispute between a plaintiff and defendant. Rather, criminal proceedings are intended to determine the right of the state to step outside of its ordinary role and ascribe moral culpability to citizens. Thus, a special and more rigorous procedural regime is required in order to legitimize the exercise of such extraordinary powers by the liberal state. [FN68]


II. Modern Procedure and Its Discontents
Part I presented a survey of the four central lines of argument used to justify the dichotomy between civil and criminal procedure. *99 This Part further explores these justifications, seeking to expose their limitations and to illustrate that the differences between the civil and criminal paradigms are in degree rather than in kind. As a result, these justifications fail to adequately account for the existing dichotomy in procedure.

A. The Utilitarian Justification Reconsidered
The traditional justification for the pro-defendant procedural bias in criminal trials, we claimed above, is rooted in the utilitarian calculus, according to which it is significantly more costly for society to erroneously convict an innocent person than to erroneously acquit a guilty defendant, with the disutility ratio traditionally set at about 9:1. [FN69] The beyond a reasonable doubt standard of proof reflects this calculus. In civil proceedings, by contrast, the disutility ratio is considered approximately 1:1, the assumption being that the costs of error in favor of the plaintiff are roughly equal to the costs of error in favor of the defendant. [FN70] Accordingly, in the civil context, a pro-defendant procedural bias cannot be justified, and the required certitude is appropriately set at the level of a preponderance of the evidence. Upon closer scrutiny, however, the assumptions underlying these disutility ratios emerge as incorrect with respect to a broad category of cases. These assumptions can be contested in relation both to the severity attributed to the criminal sanction and to the supposed leniency of the civil sanction. We shall start with the criminal side of the divide.
For the error-cost rationale to apply for the existing procedural regime, a false conviction must universally generate an exceedingly great social cost in all criminal case contexts. When criminal sanctions involve the denial of liberty, significant harm is justifiably ascribed to a false conviction, and the error-cost premise holds. However, many criminal convictions lead to the imposition of relatively lenient sanctions, such as fines or other forms of symbolic punishment. [FN71] In this type of case, the disutility ratio of erroneous *100 convictions to erroneous acquittals is lower than in cases involving imprisonment. Based on the interaction between the standard of proof and the pro-plaintiff-error to pro-defendant-error calculus, in cases in which the potential sanction is a fine, a lower standard of proof would achieve optimal allocation of the risks and costs of error between the litigating parties. In other words, the utilitarian rationale does not offer adequate justification for applying enhanced procedural safeguards to cases in which the potential sanction is categorically lenient. Rather, such safeguards are appropriate under the utilitarian argument only in cases of a severe potential sanction, such as the deprivation of liberty. [FN72]
The constancy of the disutility ratio between pro-defendant errors and pro-plaintiff errors attributed to the civil proceeding can also be disputed. Some categories of civil cases implicate interests that are as significant to one of the parties as those involved in criminal trials, while categorically less significant to the opposing party. Take, for instance, civil sanctions that lead to various forms of deprivation of liberty, such as civil contempt, civil commitment, and confinement under sexual predator laws. [FN73] In this category of cases, the disutility ratio is undoubtedly higher than 1:1. The expected harm to the individual facing, for example, confinement from an erroneous ruling against her is significantly greater than the expected harm to society at large from the reverse error. According to the utilitarian calculus suggested above, the structure of civil procedure should be based on an algorithm that weighs the costs of a mistaken ruling in favor of one party against the costs of a mistaken ruling in favor of the other party. A unitary civil procedure that allocates the risk of error equally between the parties is problematic because it does not allow for an optimal allocation of the risks and costs of error between the parties in a wide variety of civil cases.
*101 The categorical claim that the disutility ratio in civil cases is, by definition, more balanced than the disutility ratio in criminal cases is, therefore, a crude oversimplification. Determining the procedural regime according to the error-cost calculus does not conform to the boundaries of the current civil-criminal divide. As Kenneth Mann has asserted, "The criminal and civil paradigms attempt to abstract a set of traits from the complex and multifaceted nature of sanctions, in which substantial areas of overlap exist between civil and criminal law. Almost every attribute associated with one paradigm appears in the other." [FN74] The utilitarian rationale cannot sustain the procedural divide because it fails to account for categories of civil cases where the disutility ratio is systematically higher than 1:1 and for categories of criminal cases in which the disutility ratio is lower than 9:1. The allocation of the risk of error, if it is to be based upon the severity and costliness of an erroneous outcome for each of the parties, must be fine-tuned and determined according to a different set of criteria.

B. The Egalitarian Justification Reconsidered
The second type of justification focuses on the parties to the litigation and their respective power and resources. It is argued that, in the criminal context, the asymmetry in power and resources between the government and the individual mandates special procedural safeguards to restore equality-- or at least to ameliorate the inequality--between the parties. These safeguards are seen as important to attaining accurate and just legal outcomes. In contrast, all civil litigants are presumed to be more or less equally equipped. A procedural regime that guarantees equal allocation of the risk of error between the parties is therefore justified.
A closer look at the adversarial system of civil justice reveals, however, that the prevailing assumptions are not factually based. At all levels, the government is no stranger to civil litigation. In fact, the government files more civil claims than any other entity and is an equally frequent civil defendant. [FN75] Therefore, to the extent *102 that we believe that the imbalance of power between the government and the individual justifies special procedural safeguards, these safeguards should apply not only to criminal litigation but also to the many civil actions in which the government is a party. [FN76]

[FNa1]. Assistant Professor, Tel Aviv University Faculty of Law.

[FNaa1]. Assistant Professor, Tel Aviv University Faculty of Law. We are grateful to Dafna Barak-Erez, Michael Birnhack, Hanoch Dagan, Owen Fiss, Lawrence Friedman, Assaf Hamdani, Keith Hylton, Pam Karlan, Roy Kreitner, Alexi Lahav, Shai Lavi, Kenneth Mann, Dan Markel, Judith Meisels, Jacob Nussim, Ariel Porat, Judith Resnik, the participants of the 2007 Stanford/Yale Junior Faculty Forum, the participants of the Faculty Legal Studies Workshop at Cornell Law School, the participants of the Tel Aviv University Law Faculty Seminar, and the participants of the Bar Ilan University Law Faculty Seminar for their very helpful comments and suggestions. Ofira Alon provided invaluable research assistance, and Dana Rothman offered superb editorial assistance.

[FN1]. United States v. United Mine Workers of Am., 330 U.S. 258, 364 (1947) (Rutledge, J., dissenting).

[FN2]. William Blackstone, 4 Commentaries *352. Numerous variations of this axiom exist, the main variation being the ratio of n guilty men who ought to be acquitted in order to spare one innocent man. See Alexander Volokh, n Guilty Men, 146 U. Pa. L. Rev. 173, 174-77 (1997).

[FN3]. See Gail Heriot, An Essay on the Civil-Criminal Distinction with Special Reference to Punitive Damages, 7 J. Contemp. Legal Issues 43, 44 (1996) ("Indeed, today, this two-part legal system is largely taken for granted, and the distinction between criminal and civil viewed as fundamental."); Myrna S. Raeder, Cost-Benefit Analysis, Unintended Consequences, and Evidentiary Policy: A Critique and a Rethinking of the Application of a Single Set of Evidence Rules to Civil and Criminal Cases, 19 Cardozo L. Rev. 1585, 1587 (1998) ("Few would think of combining civil and criminal procedure into one code because of the many policy differences inherent in the two justice systems."); Paul H. Robinson, The Criminal-Civil Distinction and the Utility of Desert, 76 B.U. L. Rev. 201, 201-02 (1996) ( "Apparently every society sufficiently developed to have a formal legal system uses the criminal-civil distinction as an organizing principle.").

[FN4]. For instance, Lord Mansfield remarked in 1775, "Now there is no distinction better known, than the distinction between civil and criminal law; or between criminal prosecutions and civil actions." Atcheson v. Everitt, (1775) 98 Eng. Rep. 1142, 1147 (K.B.); see also Aaron Xavier Fellmeth, Civil and Criminal Sanctions in the Constitution and Courts, 94 Geo. L.J. 1, 2 (2005) ("There are few distinctions in Anglo-American jurisprudence more fundamental and consequential than that between the civil law and the criminal law.").

[FN5]. This includes the beyond a reasonable doubt standard of proof, assistance of counsel, the enhanced discovery duties borne by the government, double jeopardy protection, and numerous other safeguards.

[FN6]. As used in this Article, "civil law" refers to all law that is not criminal and includes also administrative proceedings. Also, for the purposes of this Article, the term "procedure" includes the rules of evidence.

[FN7]. The erosion of the civil-criminal procedure distinction is a result of both legislative action and larger developments in intellectual discourse. The developments in intellectual discourse affecting the criminal-civil distinction will not be discussed in this paper. For an analysis of the two biggest intellectual challenges to the criminal-civil distinction--the advent of the law and economic analysis of law and the decline of rehabilitation as the goal of criminal punishment--see Carol S. Steiker, Foreword, Punishment and Procedure: Punishment Theory and the Criminal-Civil Procedural Divide, 85 Geo. L.J. 775, 784-91 (1997).

[FN8]. A recent study estimates the number of offenses in the United States Code that carry criminal penalty at more than 4000. John S. Baker, Jr., Measuring the Explosive Growth of Federal Crime Legislation 8 (2004), http:// www.fed-soc.org/doclib/20070404_crimreportfinal.pdf. If regulations are included, the number of "crimes" rises significantly. One estimate placed the number of federal regulations that may be enforced criminally at over 300,000. Thomas B. Leary, Commentary, The Commission's New Option that Favors Judicial Discretion in Corporate Sentencing, 3 Fed. Sent'g Rep. 142, 144 n.10 (1990) (citing Stanley S. Arkin, Comments at the George Mason Conference on Sentencing of the Corporation (Oct. 25, 1990)).

[FN9]. The federal government and the states are actively and consciously using civil law techniques to curb criminal behavior. See Mary M. Cheh, Constitutional Limits on Using Civil Remedies to Achieve Criminal Law Objectives: Understanding and Transcending the Criminal-Civil Law Distinction, 42 Hastings L.J. 1325, 1326-27 (1991).

[FN10]. See William J. Stuntz, Substance, Process, and the Civil-Criminal Line, 7 J. Contemp. Legal Issues 1, 1-2 (1996).

[FN11]. See Welsh v. Wisconsin, 466 U.S. 740, 754 (1984) (invalidating the arrest of a suspected drunk driver because, under Wisconsin law at the time, a first-time DUI was not a crime, but a civil violation, and thus, without probable cause to believe the defendant had committed a crime, the police were forbidden from forcibly entering his house and arresting him).

[FN12]. See United States v. James Daniel Good Real Prop., 510 U.S. 43, 62 (1993) (holding the government's seizure of Good's house pursuant to an ex parte warrant in a civil action for forfeiture unconstitutional because the proceeding was civil rather than criminal and the Due Process Clause prohibits seizing real property in a civil forfeiture without first giving the owner notice and a hearing).

[FN13]. See, e.g., Susan R. Klein, Civil In Rem Forfeiture and Double Jeopardy, 82 Iowa L. Rev. 183, 189 (1996) (arguing that the practice of bringing parallel civil in rem and criminal forfeiture actions is intended to reap procedural advantages and is therefore unfair). One prominent procedural advantage of civil forfeiture is that it applies the preponderance of the evidence burden of proof. Civil Asset Forfeiture Reform Act of 2000, 18 U.S.C. §983(c)(1) (2000). However, the constitutionality of using the preponderance of the evidence burden of proof in civil forfeiture actions that carry severe penalties has been questioned. See, e.g., Marc B. Stahl, Asset Forfeiture, Burdens of Proof and the War on Drugs, 83 J. Crim. L. & Criminology 274, 278-79 (1992) (arguing that Comprehensive Drug Abuse Prevention and Control Act §881 civil forfeiture proceedings violate the Due Process Clause because they invoke only a "minimal" burden of proof (preponderance of the evidence) while severe civil penalties apply).

[FN14]. For a comprehensive description of these proposals, see infra Part III.

[FN15]. Stuntz, supra note 10, at 2.

[FN16]. See John Leubsdorf, Constitutional Civil Procedure, 63 Tex. L. Rev. 579, 580 (1984).

[FN17]. Kenneth Mann, Punitive Civil Sanctions: The Middleground Between Criminal and Civil Law, 101 Yale L.J. 1795, 1802 (1992).

[FN18]. See Judith Resnik, The Domain of Courts, 137 U. Pa. L. Rev. 2219, 2222 (1989) ("I (and my colleagues Robert Cover and Owen Fiss) believe that the delineation between 'civil' and 'criminal' procedure is often artificial; much is to be learned from thinking about civil and criminal procedure together. The thesis is not that the rules are or ought to be the same in all instances but that the theoretical questions addressed by the two sets of rules are the same and that different resolutions merit analysis." (citations omitted)); see also Robert M. Cover & Owen M. Fiss, The Structure of Procedure, at iii-iv (1979).

[FN19]. The argument that different procedural rules should govern depending on the symmetry of the parties can be analogized to similar arguments made with respect to substantive law. See Hanoch Dagan, The Law and Ethics of Restitution 54-63 (2004) (arguing that the rules governing mistakes in private contexts should differ from those governing mistakes in institutional contexts); Alan Schwartz & Robert E. Scott, Contract Theory and the Limits of Contract Law, 113 Yale L.J. 541, 550 (2003) (arguing that rules governing business contracts between firms should differ from rules governing business contracts between individuals and firms).

[FN20]. John Godfrey Saxe, The Blind Men and the Elephant: John Godfrey Saxe's Version of the Famous Indian Legend (Whittlesey House 1963) (n.d.).

[FN21]. It is worthwhile to recall that the distinction between the criminal and civil spheres, although definitely age-old, is not inevitable or transhistorical. In fact, the early common law did not make any such distinction. See David J. Seipp, The Distinction Between Crime and Tort in the Early Common Law, 76 B.U. L. Rev. 59, 80-81 (1996).

[FN22]. See Peter Birks, Preface to 1 English Private Law, at xxxi (Peter Birks ed., 2000) ("There is no body of knowable data which can subsist as a jumble of mismatched categories.").

[FN23]. Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 811 (1935).

[FN24]. See Hanoch Dagan, Legal Realism and the Taxonomy of Private Law 7 (Tel Aviv Univ. Law Faculty Papers, Paper No. 38, 2006), available at http:// law.bepress.com/cgi/viewcontent.cgi?article=1038&context=taulwps.

[FN25]. See id. at 12 (associating such a taxonomical practice with the tradition of legal realism).

[FN26]. Walter Wheeler Cook, "Substance" and "Procedure" in the Conflict of Laws, 42 Yale L.J. 333, 356 (1933).

[FN27]. See Bruce L. Hay, Allocating the Burden of Proof, 72 Ind. L.J. 651, 654 (1997).

[FN28]. See Louis Kaplow, The Value of Accuracy in Adjudication: An Economic Analysis, 23 J. Legal Stud. 307, 307-08 (1994) ("Accuracy is a central concern with regard to a wide range of legal rules. One might go so far as to say that a large portion of the rules of civil, criminal, and administrative procedure and rules of evidence involve an effort to strike a balance between accuracy and legal costs.").

[FN29]. See id. at 348.

[FN30]. See Erik Lillquist, Recasting Reasonable Doubt: Decision Theory and the Virtues of Variability, 36 U.C. Davis L. Rev. 85, 135 (2002) ("If an individual already knows that she will run some chance of being punished regardless of whether or not she engages in the activity, the cost of the sanction decreases.").

[FN31]. See Rinat Kitai, Protecting the Guilty, 6 Buff. Crim. L. Rev. 1163, 1181 (2003).

[FN32]. See Kaplow, supra note 28, at 362.

[FN33]. Tom Stacy, The Search for the Truth in Constitutional Criminal Procedure, 91 Colum. L. Rev. 1369, 1406-07 (1991) ("[B]ecause no set of procedures can eliminate all erroneous outcomes, any conception of accuracy mustalso address how errors should be allocated as between erroneous convictions and acquittals." (citation omitted)).

[FN34]. See Lillquist, supra note 30, at 89.

[FN35]. See David M. Appel, Note, Attorney Disbarment Proceedings and the Standard of Proof, 24 Hofstra L. Rev. 275, 277 (1995).

[FN36]. See Richard A. Posner, An Economic Approach to Legal Procedure and Judicial Administration, 2 J. Legal Stud. 399, 410-15 (1973); Frederick Schauer & Richard Zeckhauser, On the Degree of Confidence for Adverse Decisions, 25 J. Legal Stud. 27, 34 (1996). Assuming that the beyond a reasonable doubt standard of proof is set at a certainty level of 90 percent (probability of 0.9), the social damage inflicted by erroneously convicting an innocent defendant is considered to be about nine times costlier than the social cost of wrongful acquittal. See Lillquist, supra note 30, at 90. For further discussion on the desirability of quantifying the reasonable-doubt standard, see generally Henry A. Diamond, Note, Reasonable Doubt: To Define, or Not to Define, 90 Colum. L. Rev. 1716 (1990) (arguing that jury instructions defining reasonable doubt should always be given). But see Peter Tillers & Jonathan Gottfried, United States v. Copeland: 369 F. Supp. 2d 275 (E.D.N.Y. 2005): A Collateral Attack on the Legal Maxim that Proof Beyond a Reasonable Doubt Is Unquantifiable?, 5 L. Probability & Risk 135, 140-41 (2006) (arguing that the usual reasons given for the unquantifiability of reasonable doubt are unsatisfactory, with the recent case of United States v. Copeland serving as a reminder that there are strong considerations in favor of quantification of at least some standards of persuasion).

[FN37]. See Daniel L. Rubinfeld, Econometrics in the Courtroom, 85 Colum. L. Rev. 1048, 1052 (1985) (citing In re Winship, 397 U.S. 358, 371 (1970) (Harlan, J., concurring)).

[FN38]. Alex Stein, Foundations of Evidence Law 219 (2005).

[FN39]. See Alex Stein, The Refoundation of Evidence Law, 9 Can. J. L. & Jurisprudence 279, 333-35 (1996). The slight tilt in favor of the defendant can be attributed to the fact that "'taking' is perceivable as being generally more harmful than 'not giving."' Id. at 335.

[FN40]. See, e.g., Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353, 382-84 (1978).

[FN41]. See, e.g., Robert A. Kagan, Adversarial Legalism: The American Way of Law 121-25 (2001); John H. Langbein, The German Advantage in Civil Procedure, 52 U. Chi. L. Rev. 823, 843 (1985); see also Alan Wertheimer, The Equalization of Legal Resources, 17 Phil. & Pub. Aff. 303, 303-04 (1988).

[FN42]. See William B. Rubenstein, The Concept of Equality in Civil Procedure, 23 Cardozo L. Rev. 1865, 1873-74 (2002).

[FN43]. See Jonathan I. Charney, The Need for Constitutional Protections for Defendants in Civil Penalty Cases, 59 Cornell L. Rev. 478, 505 (1974); Stuntz, supra note 10, at 27.

[FN44]. United States v. Shapleigh, 54 F. 126, 129 (8th Cir. 1893).

[FN45]. Stuntz, supra note 10, at 28.

[FN46]. Judith Resnik, Failing Faith: Adjudicatory Procedure in Decline, 53 U. Chi. L. Rev. 494, 513-15 (1986). The preponderance of the evidence standard in civil litigation reflects this assumption. See Richard A. Bierschbach & Alex Stein, Overenforcement, 93 Geo. L.J. 1743, 1761 (2005) ( "By allowing the party with the better proof to prevail, [the preponderance of the evidence standard] treats the plaintiff and the defendant as equals. That makes it fair."); Stein, supra note 39, at 333-38 (demonstrating that the preponderance of the evidence standard, along with the general burden-of-proof doctrine, places equal risks of error on the plaintiff and the defendant and thereby promotes fairness).

[FN47]. See Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. Pa. L. Rev. 1503, 1510 (2000). As a social practice, law has a significant expressive function. Law's expressivity can be understood in two distinct fashions. One is purely symbolic and nonconsequential. Many people support or object to law not for any consequential reasons (such as the law's deterrent effect), but due to its symbolic content, namely, the declaration it makes about the community's morals and values. See Cass R. Sunstein, On the Expressive Function of Law, 144 U. Pa. L. Rev. 2021, 2022-23 (1996). The other facet to law's expressivity is consequential and relates to its power to shape, change, and reinforce social norms. Law's expressive function is manifested, in this sense, in its ability to influence normative behavior by making statements that create and sustain shared social norms, rather than controlling behavior directly. See Paul H. Robinson & John M. Darley, The Utility of Desert, 91 Nw. U. L. Rev. 453, 471 (1997). In this Article, we deal only with the consequential element of the expressive theory.

[FN48]. See Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. Chi. L. Rev. 591, 593 (1996).

[FN49]. See Joel Feinberg, The Expressive Function of Punishment, in 4 Philosophy of Law: Crimes and Punishments 87, 88-89 (Jules L. Coleman ed., 1994).

[FN50]. See Henry M. Hart, Jr., The Aims of the Criminal Law, 23 L. & Contemp. Probs. 401, 404 (1958) ("What distinguishes a criminal from a civil sanction...is the judgment of community condemnation which accompanies and justifies its imposition."); see also J. Morris Clark, Civil and Criminal Penalties and Forfeitures: A Framework for Constitutional Analysis, 60 Minn. L. Rev. 379, 406-07 (1976) ("One might conceptualize the difference between civilly and criminally labeled penalties by stating that most people see in civil penalties an element of deterrence, but not a very strong element of retribution or moral condemnation"); Steiker, supra note 7, at 805 (discussing the distinctive blaming function of criminal punishment).

[FN51]. Feinberg, supra note 49, at 400.

[FN52]. Erving Goffman, Stigma: Notes on the Management of Spoiled Identity 30 (Jason Aronson 1974) (1963).

[FN53]. See George K. Gardner, Bailey v. Richardson and the Constitution of the United States, 33 B.U. L. Rev. 176, 193 (1953).

[FN54]. See Feinberg, supra note 49, at 400.

[FN55]. John C. Coffee, Jr., Paradigms Lost: The Blurring of the Criminal and Civil Law Models--And What Can Be Done About It, 101 Yale L.J. 1875, 1876 (1992).

[FN56]. Steiker, supra note 7, at 806-08. Steiker offers a third rationale that relates to the political threat to liberty inherent in criminal liability and punishment. Id. at 806. We address this third rationale in the following Section.

[FN57]. See R. A. Duff, Trials and Punishments 233 (1986); see also Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. Rev. 1659, 1694 (1992) (arguing that punishment has the capacity to deliver a "profoundly humbling message" to wrongdoers).

[FN58]. Steiker, supra note 7, at 807.

[FN59]. Id. at 808.

[FN60]. Keith N. Hylton & Vikramaditya Khanna, A Public Choice Theory of Criminal Procedure, 15 Sup. Ct. Econ. Rev. 61, 72 (2007) (claiming that an additional justification for the pro-defendant bias in criminal procedure stems from the need to raise the costs for self-interested actors, whether individuals or government agents, to use the criminal process in order to enhance their own utilities).

[FN61]. Donald Dripps, The Exclusivity of the Criminal Law: Toward a "Regulatory Model" of, or "Pathological Perspective" on, the Civil-Criminal Distinction, 7 J. Contemp. Legal Issues 199, 204 (1996).

[FN62]. Id.

[FN63]. Id. Dripps argues that this explains why dictators with the power to make their opponents simply disappear prefer instead to use criminal trials to eliminate their adversaries. Examples include Hitler, who "exploited the Reichstag fire," and Stalin, who "insisted on show-trials" for many of his victims. Id. at 205.

[FN64]. Id. at 205-06.

[FN65]. R. A. Duff, Punishment, Communication, and Community 36 (2001).

[FN66]. See Sharon Dolovich, Legitimate Punishment in Liberal Democracy, 7 Buff. Crim. L. Rev. 307, 310 (2004); see also Duff, supra note 65, at 35 ("A normative theory of punishment must include a conception of crime as that which is to be punished. Such a conception of crime presupposes a conception of the criminal law--of its proper aims and content, of its claims on the citizen. Such a conception of the criminal law presupposes a conception of the state--of its proper role and functions, of its relation to its citizens. Such a conception of the state must also include a conception of society and of the relation between state and society.").

[FN67]. Duff, supra note 65, at 36-37.

[FN68]. See George P. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L.J. 880, 888-90 (1968) (explaining that the heightened burden of persuasion in criminal trials is attributable to the need to justify the use of criminal sanctions as a means of moral condemnation).

[FN69]. Lillquist, supra note 30, at 90.

[FN70]. See Schauer & Zeckhauser, supra note 36, at 34.

[FN71]. See, e.g., Charles B. Renfrew, The Paper Label Sentences: An Evaluation, 86 Yale L.J. 590, 591-93 (1977) (describing an example of imposing fines rather than incarceration for violations of antitrust laws).

[FN72]. For an alternative argument, that the sanction should depend on the certainty of guilt, see Henrik Lando, The Size of the Sanction Should Depend on the Weight of the Evidence, 1 Rev. L. & Econ. 277 (2005), available at http://www.bepress.com/rle/vol1/iss2/art4.

[FN73]. See Mann, supra note 17, at 1798 (finding "rapidly expanding" punitive civil sanctions to be "sometimes more severely punitive than the parallel criminal sanctions for the same conduct").

[FN74]. Id. at 1804.

[FN75]. In 1983, the United States was either plaintiff or defendant in 39.6% of the civil cases first brought in federal district courts. See Admin. Office of the U.S. Courts, 1983 Annual Report of the Director 5 tbl.5 (1984). In 1990, the United States was a party in 25.8% of the civil litigation before federal district courts. See Admin. Office of the U.S. Courts, 1990 Annual Report of the Director 8 tbl.6 (1991). In 2000, the number was 27.4%, but, in 2005, it fell to 20.7%. See Admin. Office of the U.S. Courts, 2000 Annual Report of the Director 22 tbl.5 (2001); Admin. Office of the U.S. Courts, 2005 Annual Report of the Director 20 tbl.4 (2006).

[FN76]. This is all the more true due to the special privileges enjoyed by the government in civil proceedings, such as the extended period of time for serving an answer. Fed. R. Civ. P. 12(a)(3).

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