OVERCOMING PROCEDURAL BOUNDARIES（3）
OVERCOMING PROCEDURAL BOUNDARIES（3）
2. Normative Obstacles
Let us now assume that we could miraculously formulate a universally acceptable theory of punishment that unambiguously classifies every sanction as either punitive or nonpunitive and clearly demarcates the boundaries between proceedings that are "criminal in nature" and those that are not. The procedural issues would still not be resolved, for the rationales for the punitive/nonpunitive distinction diverge in many important respects from the justifications for the criminal/civil procedural divide. There is no necessary correlation *130 between the logic underlying the classification of a certain sanction as punitive (that is, criminal) or nonpunitive (that is, civil) and the rationale for the use of the more restrictive criminal procedure or the less restrictive civil procedure.
Suppose, for example, we were to agree with the Supreme Court in Kansas v. Hendricks that civil commitment of "sexually violent predators" ("SVPs") is not "punishment" because it is intended to prevent future harms rather than punish past deeds. [FN171] It does not necessarily follow that applying the less demanding civil procedure to such commitments is also justified. On the contrary, even though the detention of SVPs is justifiably defined (under a certain definition of punishment) as nonpunitive and, hence, civil, we would still argue that, in light of the goals and values of procedure, it is crucial that stringent procedures (currently labeled "criminal") be applied to such cases. This fundamental intuition of justice led the Court in Addington v. Texas to reject the argument that the government can civilly commit people applying the preponderance of the evidence standard used in civil litigation and to hold that the Due Process Clause requires the government to prove by clear and convincing evidence that the individual was both mentally ill and dangerous. [FN172] Similarly, in Schneiderman v. United States [FN173] and Woodby v. INS, [FN174] the Court held that although denaturalization and deportation proceedings are civil in nature, they still require proof by clear, unequivocal, and convincing evidence. The Court has never developed, however, a principled explanation for why these cases should trigger certain criminal procedural safeguards while others should not. This is hardly surprising--the civil-criminal conceptual dichotomy that the Court is committed to (or rather trapped in) prevents it from developing a coherent and reasoned jurisprudence for procedure that is detached from the substantive law's civil-criminal divide. And since the substantive civil-criminal divide is, as we have *131 discussed, fuzzy and muddled, the inevitable result is unpredictability, inconsistency, and confusion in procedure as well.
This also holds true for cases that originate on the criminal side of the divide. Sanctions that can be clearly identified as punitive and therefore criminal, such as a $10,000 criminal fine imposed on a corporation for polluting the water, do not necessarily merit the enhanced safeguards guaranteed by criminal procedure. We shall argue below that in criminal cases in which the offender is a large corporation (so that no imbalance of power exists between the litigants), the sanction imposed is trivial, and no significant stigma attaches to the wrongdoer, it is not justified to apply the stringent and costly criminal procedure. Despite the indubitably punitive nature of the sanction, less demanding procedure is called for. We therefore concur with the Supreme Court's conclusion in United States v. Ward, [FN175] although we reject its reasoning. The $500 fine imposed on L.O. Ward Oil & Gas Operation for polluting the Arkansas River might very well have been punitive in nature, but punitiveness alone does not justify applying the more demanding criminal procedure in such a case.
To sum up, it is nearly impossible to identify whether or not the purpose of a sanction is punitive; even if a sanction can be identified as having a punitive purpose, this alone is not sufficient to justify the more rigorous protections of criminal procedure. If we aspire to craft an efficient procedural regime that fulfills the imperatives of justice, we must abandon the civil-criminal dichotomy in procedure altogether. Our procedural regime should be reconstructed based on factors such as the severity of the sanction or remedy, the nature of the parties, and the accompanying stigma, and the regime should apply indiscriminately to all legal measures, whether purportedly civil or criminal. We lay out just such an alternative procedural model in Part IV.
*132 B. Heightened Constitutional Protections in Civil Procedure
Coming from the civil realm, Professor John Leubsdorf argues that the Supreme Court has unjustifiably ignored civil procedure by neglecting to regulate the activities and procedures that the government may institute in civil actions. While the Court has been the dominant force in shaping modern criminal procedure by providing extensive constitutional protections to criminal suspects and defendants, it has been rather indifferent toward civil procedure. [FN176] Unlike criminal procedure, in which fairness to individuals has always been a major concern, instances of procedural unfairness in civil litigation have failed to trigger Court intervention. [FN177] There are no valid justifications, Leubsdorf asserts, for this discrepancy in approach, [FN178] and the "constitutional role in fashioning civil procedure should be expanded" to "guarantee equally to plaintiffs and defendants fair and accessible procedures" for resolving their disputes. [FN179] Possible applications of a constitutional civil procedure include constitutionalizing the right to bring class actions, [FN180] developing a constitutional right to preliminary relief, [FN181] placing constitutional restraints on judges in contempt and disqualification proceedings, [FN182] recognizing a constitutional right to appeal, [FN183] and constitutionally mandating a waiver of court fees for indigent parties as well as the right to counsel in some cases. [FN184]
Like his criminal proceduralist counterparts, Leubsdorf is influenced by the powerful divide. We have no quarrel with Leubsdorf's basic insights that the rift between the civil and criminal spheres is overstated and that, as far as constitutional jurisprudence is concerned, civil procedure has been unjustly overlooked. We do not, *133 however, share his conclusion, which is simultaneously over- and underbroad. Enhancing constitutional protections in civil proceedings en masse would dump an insurmountable load on our system of justice, making litigation substantially more costly and complex. Leubsdorf is well aware of this impediment, [FN185] and therefore his list of demands to the Court is rather modest and nonexhaustive, calling for a "broad yet balanced constitutional law of civil procedure." [FN186] Such a procedural regime, however, is not enough in some cases and too much in others. When a defendant is threatened with severe civil sanctions from the government qua plaintiff, it is not enough that her court fees are waived (if she is indigent) or that judicial disqualification proceedings are more liberal. Rather, elevated procedural protections such as a higher standard of proof or Eighth Amendment protection against excessive fines are needed. Conversely, a constitutional right to bring a class action may turn out to be a bane rather than a boon, significantly elevating the risk of frivolous class action suits. [FN187] A procedural model, such as the one we propose below, that differentiates among types of civil (as well as criminal) cases will impose cumbersome constitutional procedures only in cases that warrant them in accordance with the goals and values of procedure.
IV. Crossing the Civil-Criminal Divide: An Alternative Model for Procedure
The model proposed in this Article rests on the observation that the civil-criminal procedural dichotomy is inappropriate for the realities of the twenty-first century. Even assuming that the civil-criminal divide corresponded to the values underlying procedure when it was set--that is, when criminal law was much "thinner" and institutional actors as well as the government were less involved in civil litigation--this is no longer the case. The current reality is one in which the administrative state has taken root, the government is a habitual player in civil litigation, the criminal *134 sphere has been extended beyond what anyone could imagine, and criminal charges are regularly being brought against institutional actors. As a result, the civil-criminal dichotomy has come to breed significant anomalies that can no longer be tolerated. The substantive classification of a case as either civil or criminal can no longer assist in determining the appropriate level of procedural safeguards. It is essential, therefore, to detach procedure from the substantive civil-criminal dichotomy.
We have sought to devise an initial blueprint for a workable procedural regime that is independent of the civil-criminal split in substantive law but that nonetheless conforms to its underlying normative premises. In our opinion, the dissociation of substantive law from procedure will enhance both the substantive law and procedure. It will generate a system that is more fine-tuned and that better serves the goals of procedure, while simultaneously eliminating the adverse incentives that currently drive Congress toward both over- and undercriminalization. Accordingly, we propose a new regime that runs along two main axes: the balance of power between the parties and the severity of the sanction. As we will demonstrate below, these two criteria play instrumental roles in the realization of utilitarian, egalitarian, and expressive goals, the very same goals that the current procedural regime attempts, but fails, to achieve. Our aim in this paper is not to provide a complete, all-encompassing procedural regime but, rather, to map out an alternative procedural model in broad strokes. We leave the details for a future project.
A. Balance of Power
In an adversarial system of justice, the outcome of any case depends to a great extent on the balance of power between the litigating parties. [FN188] Under this type of system, the parties are responsible for defining the contours of their dispute and laying the factual and legal foundations for their case before the court. The adversarial model is based on the premise that competition between opposing parties leads to the triumph of truth. [FN189] For such a system to work, however, a fundamental prerequisite is that the *135 competition takes place between fairly matched adversaries, [FN190] who are equally capable of collecting evidence, examining witnesses, summoning experts, and the like. The accuracy of the judicial outcome is contingent on the absence of an a priori structural propensity in favor of one party over the other. [FN191]
The existing procedural regime attempts to respond to the reality of unequal adversaries and the problems created thereby by using the civil-criminal dichotomy as a proxy for the existence or nonexistence of a balance of power between the respective parties. The pro-defendant bias inherent in the rules of criminal procedure is intended to remedy the system's built-in imbalance of power in favor of the prosecution, which stems from the government's greater access to resources, its ability to gather evidence even before the suspect knows that an investigation is under way, and its sophisticated investigative and prosecutorial apparatuses. The enhanced criminal procedural safeguards, including the beyond a reasonable doubt standard of proof, are designed to restore the balance of power between the parties and to place them on equal footing. In the civil sphere, on the other hand, there is an assumption of structural equality in power and resources between the parties. This is reflected in the supposed neutrality of civil procedure, including its preponderance of the evidence standard of proof, which favors neither defendant nor plaintiff.
However, the civil-criminal divide is a poor and inadequate proxy for this balance of power; it is insensitive to the immense structural imbalances of power inherent in the civil sphere as well as the many instances of power symmetry inherent in the criminal sphere. The existing civil procedural regime overlooks the structural power disparities between different categories of litigants. It applies similar rules to litigation in which the government or a large organizational entity sues, or is sued by, an individual and to litigation in which one individual sues another individual. The failure on the part of the existing regime to neutralize structural power imbalances between RPs (such as the government and large organization entities) and private litigants has an adverse impact on *136 the goals of procedure, such as accuracy and fairness. [FN192] Likewise, the existing model of criminal procedure ignores the many cases in which a structural symmetry exists between the prosecution and the defense. When the state prosecutes Microsoft or Citigroup, there is a good basis for contesting any claim of a power disparity between the parties. In these situations, granting defendants sweeping procedural safeguards could actually tilt the scales in their favor and upset the balance required for obtaining accurate results, thus distorting justice to the detriment of the government (and to the detriment of the public at large). The probable result would be that powerful organizations would be let off the hook, with all that this implies in terms of optimal deterrence, incapacitation, and retribution. [FN193]
Our model seeks to correct these inherent systemic biases. In situations in which a structural power gap between litigants exists, the party currently enjoying a built-in advantage in litigation (along with any out-of-court negotiations) would see its power diluted in order to restore the balance of power. The crucial point is that our model is responsive to inherent power disparities between types of *137 parties: when such disparities are identified, whether in the criminal or the civil framework, the model restores the balance of power by offering enhanced procedural safeguards to the disadvantaged party. The model classifies the parties into two types: Institutional Entities ("IE") and Individuals ("IND"). IE comprises all RPs, both government and government-like entities, [FN194] such as large corporations and financial institutions--banks, insurance companies, credit companies, et cetera. IND captures all OSs, not only people but all entities that do not fall under the IE category. One set of procedural rules would govern "symmetrical litigation," namely, litigation where both parties are either IEs or INDs; another set of rules would govern "asymmetrical litigation," namely, trials involving an IND on one side and an IE on the other.
Treating governmental "public" entities and large institutional "private" entities identically can be justified both empirically and theoretically. From an empirical perspective, it has been established that the appropriate distinction to be made is between RPs and OSs, rather than public versus private litigants. As shown earlier, [FN195] the features that give a litigating party a relative advantage at trial are not unique to the government and are shared by other RPs as well. Economies of scale are characteristic of financial institutions and large corporations; they can build a record, are able to "play the odds," and are well positioned to play for the rules of the game and to forgo immediate gains. It should, therefore, come as no shock that their success rate in litigation is comparable to that of governmental bodies. From a theoretical perspective, the dichotomy between private and public entities, which organizes legal doctrine, has been heavily criticized. [FN196] Government agencies and corporations are both bureaucratic entities and share many common *138 features. [FN197] Therefore, argue critics, [FN198] using the public/private distinction to favor certain organizations (private) over others (public) is unmerited and untenable. [FN199]
B. Severity of the Sanction
An important justification for the bifurcation of procedure is related to the allotment of the risk of error between the parties, which is based, inter alia, on the severity of the potential sanction. [FN200] The cost of an erroneous imposition of a sanction is a variable that influences the extent of procedural protection to be granted to the defendant. However, the existing procedural regime assumes that the civil-criminal dichotomy is a good proxy for the severity of the sanction or, put more accurately, of the disutility ratio between errors in favor of the plaintiff and errors in favor of the *139 defendant. Unfortunately, as we discussed above at length, this assumption is wide of the mark. Under our proposed model, procedural distinctions will be made based on neither the formal label ("civil" versus "criminal") nor the supposedly punitive nature of a sanction but, rather, on the severity of the sanction that could potentially be imposed on the defendant. [FN201] The ex ante possibility of imposing a severe sanction in a particular case will require applying enhanced procedural safeguards, irrespective of the civil or criminal substantive nature of the case or the actual sanction imposed ex post. It should be emphasized that when calculating the severity of a penalty, all formal legal sanctions deriving from the court ruling will be taken into account. Thus, if a defendant convicted of a petty offense is prevented from practicing law for the rest of her life, the penalty will be assessed above the $1000 prescribed in the penal code.
Defining severe sanctions is not a trivial task. In fact, the most frequent criticism of the idea of having the level of procedural protections correspond to the severity of the sanction is its impracticability. [FN202] We believe, however, that it is not only a workable option, *140 but also easier to administer than any of the taxonomies employed by the courts to date. It is imperative to note from the outset that sanctions would not be classified as either severe or lenient on a case-by-case basis but, rather, categorically. And while it is possible that, for a given defendant, imprisonment could be preferable to a fine, [FN203] since the former involves a denial of liberty, it would nevertheless generally be considered a harsher sanction with higher costs for both the individual and society.
Where the exact boundary line between severe and lenient sanctions will run is a political decision with significant distributive ramifications, and it can therefore vary from one society to another and from time to time. Yet it is safe to assume that, in most democratic societies, the fundamental distinction will be between monetary sanctions, on the one hand, and deprivation of liberty, on the other. Proceedings in which the court has authority to deny a person her liberty, such as criminal imprisonment or civil commitment, shall be governed by more stringent procedure, whereas proceedings in which the relief is monetary, whether in the form of a criminal fine or civil remedy, shall be governed by more lenient procedure. Denying a person her job (delicensing or debarment), her place of residence (extradition), or her parental rights would also be considered by many to be severe sanctions and thus likely candidates for the application of more stringent procedure. [FN204] It is also possible to distinguish between different types of monetary sanctions, with forfeiture of assets in general on the lenient side of the *141 divide and forfeiture of one's primary residence constituting a severe sanction. [FN205] Likewise, it is possible to conceive of a regime that considers monetary sanctions, whether civil or criminal, to be severe if they have the potential to place a litigant on the brink of bankruptcy. [FN206] Yet, again, it is immaterial to our model where the line dividing severe and lenient sanctions runs. This notwithstanding, for the purpose of presenting a robust and clear model, we shall hereinafter focus on the most straightforward distinction: that between monetary sanctions and deprivation of liberty.
C. The Proposed Procedural Model--An Illustration
To clarify our argument, let us sketch a rough outline of our proposed procedural model. For simplicity's sake, we will focus solely on the standard of proof, ignoring the many other procedural features separating civil and criminal procedure, such as double jeopardy, the right to counsel, and the right to trial by jury. Since our discussion treats procedure as a bundle, rather than relating to each feature independently, it is possible to derive the approximate state of affairs with regard to each of the other procedural features. [FN207]
*142 Using our two axes--the balance of power between the parties and the severity of the sanction--we map out below four categories into which the procedural regime is divided:
Balance of Power Imbalance of Power (in favor of the
Lenient Category A preponderance of Category B clear and convincing
Sanction the evidence evidence
Severe Category C clear and Category D beyond a reasonable doubt
Sanction convincing evidence
Category A applies to situations in which the two parties are of equal power and the potential sanction is lenient. The paradigmatic case would be where two INDs engage in a civil dispute involving a monetary remedy. Another possibility would be a civil suit between two IEs (that is, the government versus Citigroup) where the sanction is monetary. Less typical, but more innovative, would be criminal cases involving an offense punishable by a fine where the defendant is an IE (for example, a multinational corporation such as Microsoft or IBM). In such instances, both power symmetry between the parties and a lenient sanction are present. Under our model, despite the so-called criminal nature of the proceedings, the government would be able to secure a conviction by a preponderance of the evidence. This represents a serious departure from the current regime, under which the government must prove its case beyond a reasonable doubt.
Category B applies to situations in which there is power asymmetry between the parties, but the potential sanction is lenient. An example is criminal offenses punishable by a fine where the defendant is an IND. Under our model, in order to secure a conviction in such cases, the prosecution would have to bring clear and convincing evidence. [FN208] This is contrary to the situation under the current *143 regime, in which the government must prove its case beyond a reasonable doubt in all criminal cases. Another typical instance falling under this category would be a civil dispute between an IE (such as a bank) as plaintiff and an IND as defendant, over a sum of money. In such cases, our proposed model would respond to the power asymmetry by elevating the standard of proof from the current preponderance of the evidence to the clear and convincing standard.
It would be nice if we could stop here, but the situation is a bit more complex. The above table represents an imbalance of power in favor of the plaintiff. What happens when there is a power asymmetry in favor of the defendant? What standard of proof should apply, under our model, when an IND sues an IE--for instance, when an individual sues a bank or a citizen brings a claim against the government? Theoretically, the standard of proof borne by the IND should be lower than preponderance of the evidence (to something equivalent to twenty-five percent), which would be the mirror image of the standard of proof that applies to an IE plaintiff when suing an IND. [FN209] However, we realize that it might seem conceptually implausible for a procedural regime to force a judge to rule against the government or bank as defendant, even when she finds their version to be more convincing than that of the IND plaintiff. Yet leaving the standard of proof borne by the IND at preponderance of the evidence would adversely affect the goals of our proposed model, since it would fail to adequately remedy the power imbalances: it would create a mismatch between situations in which the IND is a plaintiff and those in which she is a defendant, which is both theoretically unjustifiable and practically disastrous. This incongruity would create incentives for IEs to devise mechanisms that would force INDs to initiate legal proceedings against them, rather than the IEs' having to sue the INDs. Since one of the defining characteristics of RPs is their ability to structure their next transaction, [FN210] the entire litigation market would likely reorientate in this direction. Thus, for example, banks would require security deposits and would make borrowers sign a *144 standard contract under which the bank would be able to take automatic possession of the security in the event of delay in payment; the borrower would then be forced to sue the bank to recover his money. The likely result would be that the number of cases in which IEs sue INDs would shrink dramatically and the balance of power would again favor IEs. To prevent such an adverse outcome, we propose flipping the burden of proof in IE versus IND cases and placing it on the IE, even when proceedings are initiated by the IND.
But resolving the burden of proof issue does not suffice. It is also necessary to decide what the standard of proof should be. It is tempting to "compensate" the IEs for making them shoulder the burden of proof by reducing the standard of proof from clear and convincing evidence to preponderance of the evidence. This, however, would take us back to square one by creating incentives for IEs to force INDs to initiate legal proceedings so that the former can enjoy the procedural benefits of being a defendant in the litigation. It is, therefore, crucial that the standard of proof be set at clear and convincing evidence. But then we encounter what seems to be the reverse problem. Such a procedural regime is likely to create incentives for INDs to sue IEs. However, notwithstanding this, given the many barriers faced by OSs when litigating against RPs and given the considerable disincentives for INDs to sue IEs under the current regime, we do not consider the creation of a converse incentive as particularly problematic. Another possibility is to leave the burden of proof on the shoulders of the IND plaintiff, who would then be required to prove her case by a preponderance of the evidence. Should she succeed in proving her case, however, she would be entitled to an increased remedy in an amount that would reflect her initial disadvantaged position. Under this alternative model, the expected utility of the suit would be preserved, since the initial disadvantage would be neutralized by a corresponding increase in the remedy. This would also nullify any negative incentives IEs might have to compel INDs to sue them.
Category C deals with symmetrical litigation in which the potential sanction is severe. The standard of proof in these cases should be set at clear and convincing evidence, rather than beyond a reasonable doubt, to reflect the balance of power between the parties. The practical relevance of this category is not significant. In the *145 criminal sphere, a power equilibrium between the litigants is achieved when the defendant is an IE, and since it is impossible to imprison an institution, the standard sanction in such cases is a fine. In the civil sphere, symmetry obtains in civil proceedings between two INDs or between two IEs. In such cases, it is hard to imagine a remedy that could be considered severe. [FN211]
Category D is designed to represent situations in which there is an imbalance of power between the parties and the potential sanction, whether civil or criminal, is severe. This category includes paradigmatic criminal cases in which the government prosecutes an individual for an offense punishable by imprisonment. It also includes civil litigation between the government and an individual that could potentially result in a denial of freedom, such as civil commitment, confinement under sexual predator laws, and civil contempt, but also extradition and termination of parental rights. In all such cases, the government would have to prove its case beyond a reasonable doubt. Other cases that could be included in this category (depending on how "severe sanction" is defined) are foreclosure on one's place of primary residence as well as civil monetary remedies that, if granted to an IE plaintiff, are bound to lead to a defendant IND's bankruptcy.
Theoretically, Category D raises a parallel problem in the civil context to that raised by Category B, in which the weaker party (the IND) is the plaintiff. Nevertheless, the practical relevance of this type of situation, too, is limited, since in situations in which the sanction involves deprivation of liberty, the government is typically the prosecutor-plaintiff. However, given the possible political extension of the category of severe sanctions to include substantial monetary sanctions (that is, foreclosure on primary residence and bankruptcy), the question of standard of proof could arise analogous to the discussion in the context of Category B. In such an event, the same answer provided there would apply here--namely, that the burden of proof should be shifted onto the IE.
D. The Normative Appeal of the Proposed Model
From a formalistic point of view, the suggested criteria--the imbalance of power and the severity of the sanction--represent a *146 dramatic departure from the existing taxonomy. From a substantive perspective, however, our model is not as radical as it might seem at first. It is noteworthy that the dichotomy between civil and criminal procedure was originally constructed on both structural power disparities and the severity of the sanctions. Today, however, the categories have been reified; they have taken on a life of their own. We propose reexamining the values and principles underlying the current procedural regime and argue that serious concern for these very values and principles inevitably takes us down the path to our proposed model. The procedural model based on the criteria that we have laid out in this Article surpasses the existing regime on each and every one of the goals underlying procedure: utilitarian, egalitarian, and expressive. [FN212]
From the utilitarian perspective, the proposed model takes into account the severity of the sanction, which serves as a proxy for the disutility ratio of costs associated with erroneous judgments in favor of the defendant as opposed to those against the defendant, thus furthering the goal of optimal allocation of risks and costs of error between the litigating parties. Clearly, the severity of the sanction criterion, which takes into account only the cost borne by the defendant, reflects only one side of the disutility equation; yet under the standard utilitarian calculus, the structure of procedure should be based on an algorithm that weighs the costs of a mistaken ruling in favor of one party (the defendant) against the costs of a mistaken ruling in favor of the other party (the plaintiff). It could be argued, therefore, that our analysis is inadequate. The underlying assumption of our proposed model, however, is that sanctions involving deprivation of liberty generate exceedingly high costs borne by both the defendant and society at large. These costs tip the balance between pro-plaintiff errors and pro-defendant errors in favor of the former. In such cases, the considerable potential harm to the defendant justifies focusing on pro-plaintiff errors exclusively, irrespective of the costs of erroneous *147 pro-defendant decisions, which are considered categorically less costly. In other words, severe sanctions create a prima facie case for enhanced procedural safeguards for the defendant regardless of the substantive classification of the case.
In fact, as demonstrated above, a similar rationale is at work under the existing procedural regime, using the criminal label as a proxy for severity (that is, the costs borne by the defendant) and thus utilizing the above-described calculus in all criminal cases. Our model corrects the flaws of the existing regime by drawing a distinction between different classes of criminal sanctions and civil remedies based on their potential costs. Under our model, in all categories of cases, whether civil or criminal, in which the defendant is at a risk of bearing the high costs associated with liberty deprivation, the risks of error between the defendant and the plaintiff or prosecution are allocated in a way that promotes errors in favor of the former at the expense of errors in favor of the latter. [FN213] In this respect, our model encompasses a functional division that takes the original dichotomy and follows it to its logical conclusion. [FN214]
It is important to note that there are categories of cases in which the severity of the sanction vis-à-vis the defendant cannot serve as an adequate proxy for the disutility ratio. For example, in custody cases the disutility ratio between the parties (usually the child's parents) is 1:1, despite the severity of the consequences to the losing party, because pro-plaintiff errors are equivalent to pro-defendant errors. In other words, a priori the father's loss is equal to the mother's gain and vice versa. Therefore, in this category of cases, the "sanction" should be considered lenient and the standard *148 of proof should accordingly be set at preponderance of the evidence.
From an egalitarian point of view, our proposed model is sensitive to power disparities between the parties and assists in eliminating their impact on success in litigation. It therefore guarantees a greater degree of accuracy in legal outcomes as well as a more appropriate distribution of remedies. [FN215] The remainder of this Section concentrates on the expressive ramifications of our model. As discussed, beyond its task of accurately determining criminal liability and protecting the innocent from undue punishment, the criminal *149 process also has a communicative function. From an expressive perspective, the enhanced procedural safeguards applied in criminal proceedings both protect the defendant from erroneous imposition of moral blame and stigma as well as preserve the stigmatizing power of criminal liability by assuring maximal accuracy of the criminal conviction as a reflection of de facto guilt. [FN216] Possible objections to the proposed model could, therefore, point to the diminished protections for criminal defendants against erroneous, stigmatizing conviction, as well as to the potential dilution of the expressive value of criminal liability. In what follows, we address each of these concerns.
As we saw, the expressive power of criminal law does not stem from the criminality of the conduct per se. The community's disapproval of a certain conduct, as well as the actual extent of that disapproval, does not necessarily correspond with the civil-criminal divide. Two major factors that reflect and produce stigma are the type and severity of the sanction imposed on the defendant. Punishment is the social convention that signifies moral condemnation but, as Professor Dan Kahan rightly observes, not every punishment conveys the same expressive message. Kahan makes a clear distinction between deprivation of liberty and imposition of monetary sanctions such as fines: "The message of condemnation is very clear when society deprives an offender of his liberty. But when it merely fines him for the same act, the message is likely to be different: you may do what you have done, but you must pay for the privilege." [FN217] We propose taking Kahan's distinction one step further: the stigmatizing effect of monetary sanctions diverges from that of deprivation of liberty not only in the criminal sphere, but also in the civil sphere. Civil commitment of sexual predators bears just as much stigmatizing weight as the imprisonment of a robber or rapist. Since our model mandates enhanced procedural safeguards as a prerequisite to imposing any form of liberty deprivation, it better ensures that defendants are protected from unmerited stigmatization.
*150 Now to the second concern, namely, the need to preserve the expressive power of a criminal conviction: one possible challenge to our model would be the claim that since a criminal conviction's power to generate social stigma derives from its degree of certitude, lowering the procedural standards may adversely affect its branding power. Our model entails a criminal trial in which liability is determined according to a lowered standard of proof and with less stringent procedural protections. A greater degree of uncertainty with regard to the guilt of the person deemed an offender in some cases will lead to the dilution of a criminal conviction in other cases and will make criminal convictions, in general, less valuable. The result might well be the emergence of public reluctance to impose social sanctions upon wrongdoers in general. [FN218]
This objection is shaky for two reasons. First, as we have already seen, the stigmatizing power of a criminal conviction is not unitary; rather, it varies in accordance with the type and level of sanction. [FN219] Second, divorcing substance from procedure would augment, rather than weaken, the expressive power of criminal liability in that it would enhance and fine-tune the concept of criminal conviction. Our model would facilitate the establishment of various types of convictions with different values attached to each (conviction by the beyond a reasonable doubt standard, conviction by clear and convincing evidence, and conviction by the preponderance of the evidence standard). It would thus set in motion the evolution of a hierarchy of social sanctions that correspond to the various levels of accuracy at which a criminal conviction can be secured. With time, the public would match the social sanction to the type of criminal conviction. Mild social sanctions would be imposed on those convicted by a preponderance of the evidence, heavier sanctions on those found guilty by clear and convincing evidence, and maximum sanctions on those convicted beyond a reasonable doubt. Precisely because the value of the criminal label would be linked to the degree of certainty attributed to it, there is nothing to prevent applying that label along a spectrum of different procedures. This *151 would make for a far more exact regulation of social sanctions and thereby improve the expressive function of criminal law. [FN220]
E. Constitutional Challenge
Thus far, we have presented the theoretical framework for a procedural regime that can remedy many of the problems that plague our system of civil and criminal justice, albeit sidestepping any doctrinal constitutional issues that may impede our proposal. However, this Article seeks to be more than a thought experiment; indeed, we purport to present a workable solution to a real-life puzzle. We cannot, therefore, ignore the constitutional challenges that may be raised against our model. This Section argues that, based on both historical considerations and current constitutional jurisprudence, any possible challenges to our procedural structure can be refuted.
Constitutional challenges to the proposal to grant more demanding protections to a party to civil litigation facing severe sanctions, especially when the government or an institutional entity is the opponent, carry very little weight. Neither the Due Process Clause nor any other article in the Constitution forbids or constrains the provision of better procedural safeguards in civil proceedings. On the contrary, some commentators have argued that the Constitution can and should be interpreted as mandating that constitutional *152 rights be applied in civil cases involving serious deprivations. [FN221] Just as the Supreme Court, despite the lack of textual authority, has interpreted the Due Process Clause as requiring the government to ensure due process when withdrawing conferred benefits, it could extend such a reading to other areas of the civil process. [FN222]
Providing less demanding procedural protections to criminal defendants facing trivial sanctions is more troubling from a constitutional standpoint. It is tempting to dismiss our model legalistically by arguing that the Constitution explicitly grants certain protections to criminal defendants, and it would therefore be impossible to adopt a procedural regime that deprives them of their inalienable constitutional rights. But the temptation to rest solely on the constitutional text should be resisted, as history suggests otherwise. The current structure of criminal procedure is largely a result of the 1960s Warren Court revolution, which dramatically enhanced the protections granted in criminal litigation. [FN223] There is nothing sacred about this structure. The Supreme Court has chipped away at the constitutional protections provided to criminal defendants by interpreting the Constitution in ways that correspond to the underlying goals of the constitutional safeguards, as the Court understands them, oftentimes despite clear language indicating to the contrary. [FN224]
For lack of space, we will provide only a few examples of this trend. To begin with, the Sixth Amendment guarantee of the right to a jury trial, as interpreted by the Supreme Court, does not extend to petty offenses (that is, cases involving potential imprisonment *153 of less than six months); [FN225] the constitutional right to appointed counsel does not apply in cases involving only monetary fines. [FN226] Professor J. Morris Clark provides the following explanation for the Supreme Court's procedural jurisprudence:
The reasons for the "petty offense" exception to these two sixth amendment rights are partly historical and partly functional. Historically, in both English and colonial practice predating adoption of the Constitution, fines and short prison sentences were meted out by judges sitting without juries. The Court has adopted the view that the drafters of the Constitution did not intend to change this practice despite their use of language guaranteeing jury trial of "all crimes" in article III and of "all criminal prosecutions" in the sixth amendment. Functionally, it is clear that the introduction of jury trials and the right to counsel into the most minor cases labeled "criminal" would drastically increase the expense and difficulty of such proceedings. [FN227]
Similarly, the loose standard of proportionality applied under the Eighth Amendment has been interpreted to apply only to a subclass of "punishments." For example, current Supreme Court jurisprudence holds that punitive damages, although clearly intended to punish, do not trigger Eighth Amendment protection against excessive fines. [FN228] It is also noteworthy that the most important procedural protection--the standard of beyond a reasonable doubt--is not explicitly mentioned in the Constitution. It was the Supreme Court's holding in In re Winship that set this standard of proof as constitutionally mandated in criminal cases. [FN229] And, naturally, it is a matter of interpretation as to whether this standard applies to all criminal cases or only to those defined as "severe."
*154 In sum, the Supreme Court has been interpreting the Constitution creatively for quite some time in order to achieve the goals at the core of the procedural protections. Consequently, if we have succeeded in crafting a model that is normatively viable and practically workable, no constitutional challenge should prevent its implementation.
The procedural model proposed in this Article challenges our most basic understandings of procedure and its relation to substantive law. The bifurcation of our procedural regime into civil procedure and criminal procedure is so deeply rooted that it is hard to imagine any alternative. Although tradition has indisputable value, it should not stand in the way of so necessary a reform. The above-described social and economic transformations altered the legal landscape. By remaining loyal to the traditional procedural structure, we are betraying its underlying goals of efficiency, fairness, and due process. Procedure must be flexible enough to reinvent itself when legal and social circumstances change. In fact, the history of procedure is no stranger to such revolutions, small and big. For hundreds of years, a party to litigation was excluded from testifying in her own case. As late as the mid-nineteenth century, we could find in the American Law Register the following statement: "No rule of evidence is better settled than that which excludes parties from being witnesses in their own suit." [FN230] Today, the parties to civil litigation almost always testify in their own suits and failing to do so can be held against them. [FN231] The beyond a reasonable doubt standard of proof in criminal trials developed only at the end of the eighteenth century, in conjunction with the maturing adversarial system. [FN232] And the right to counsel was for many years denied to criminal defendants and provided only in civil cases. [FN233] All these *155 changes occurred as a result of political, social, and economic transformations and reflect emergent social values. The time is now ripe for the next procedural revolution.
[FN171]. 521 U.S. 346, 360-62 (1997). But see Foucha v. Louisiana, 504 U.S. 71 (1992) (holding that the state cannot continue to detain an insanity acquittee on grounds of dangerousness after he has recovered from his mental illness, because he was not granted the procedural protections the state must provide when punishing an individual).
[FN172]. 441 U.S. 418, 427, 432-33 (1979).
[FN173]. 320 U.S. 118, 135 (1943).
[FN174]. 385 U.S. 276, 285 (1966).
[FN175]. 448 U.S. 242 (1980). The Court concluded that the Fifth Amendment prohibition against self-incrimination did not apply in proceedings brought by the government to impose a $500 penalty on the defendant, L.O. Ward Oil & Gas Operation, for discharging oil into the Arkansas River. The defendant claimed that the government required it, under pain of criminal-like penalties, to report the spillage. Therefore, the defendant argued, this "coerced" statement could not be used against it in the penalty proceedings. The Court concluded that the purpose of the proceedings was remedial and not punitive in nature and therefore the Self-Incrimination Clause did not apply. Id. at 249-51, 254-55.
[FN176]. Leubsdorf, supra note 16, at 579-81.
[FN177]. Id. at 584-85.
[FN178]. Leubsdorf claims that the Court's inactivity in the area of civil procedure cannot be justified by arguing that the consequences in civil proceedings are less grave than in criminal proceedings or that the party initiating criminal proceedings is the government whereas civil proceedings are initiated by private parties. Id. at 602-03. Since we have discussed these arguments at length in Sections II.A-B, we will not elaborate here any further.
[FN179]. Id. at 580.
[FN180]. Id. at 616-20.
[FN181]. Id. at 620-24.
[FN182]. Id. at 624-28.
[FN183]. Id. at 628-31.
[FN184]. Id. at 631-33.
[FN185]. Id. at 612.
[FN186]. Id. at 637.
[FN187]. Such a constitutional right might have impeded the enactment of the Private Securities Litigation Reform Act of 1995, Pub. L. No. 104-67, 109 Stat. 737, as well as the Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4, which sought to curb the negligent and manipulative use of class actions in certain courts.
[FN188]. For a detailed description, see supra Section II.B.
[FN189]. See Fuller, supra note 40, at 382-85.
[FN190]. Resnik, supra note 46, at 513.
[FN191]. See Ellen Kreitzberg, Death Without Justice, 35 Santa Clara L. Rev. 485, 485-87 (1995) (claiming that insufficient funding contributes to wrongful convictions).
[FN192]. In a recent article, Gillian Hadfield criticizes decisionmakers for paying too much attention to the nature of the suit and not enough attention to the nature of the litigants. Most of our economic and democratic theories of litigation, she argues, predict litigation behavior and outcomes more by the nature of the latter than by that of the former. Therefore, in crafting alternatives to traditional civil litigation, we must differentiate between different types of litigants. Hadfield, supra note 84, at 1292, 1318-19. Nonetheless, Hadfield confines her critique to the civil sphere and accepts without reservation--indeed, endorses--the civil-criminal divide. Id. at 1276; see also Peter Charles Choharis, A Comprehensive Market Strategy for Tort Reform, 12 Yale J. on Reg. 435, 442 (1995) (arguing that, of the total pool of lawsuits, a small number are overcompensated, with the overwhelming majority suffering unmerited defeat or undercompensation).
[FN193]. Such a result may also be problematic from the distributive standpoint, due to the fact that both institutions and the wealthy face a lower likelihood of conviction than do ordinary defendants. See Donald H. Zeigler, Federal Court Reform of State Criminal Justice Systems: A Reassessment of the Younger Doctrine from a Modern Perspective, 19 U.C. Davis L. Rev. 31, 40-41 (1985); Editorial, Paying for Justice, Chi. Trib., Jan. 16, 2000, at 18 (stating that failure to give the poor adequate representation results in unfairness and higher conviction rates for poor defendants). Such a phenomenon would appear to be a regressive distribution of justice. An attempt to justify this phenomenon has been made by Professor John R. Lott. According to Lott, a regime that reduces the probability of conviction for wealthy defendants is desirable because they incur higher opportunity costs deriving from a prison sentence. John R. Lott, Jr., Should the Wealthy Be Able to "Buy Justice" ?, 95 J. Pol. Econ. 1307, 1307-08 (1987).
[FN194]. Government-like entities are private entities that have vast economic and political powers as well as a very frequent presence in courts, which makes them equal to the government in all relevant factors that guarantee success in litigation. The test that should apply for identifying such government-like entities should, therefore, comprise two indicia: one should be an economic indicator, such as the value of the corporation, and the other should measure the number of litigations the entity is involved in at any given moment in time. (This second test is used, on a much smaller scale, to prevent nonindividuals from filing suits in small claims courts.) See, e.g., Colo. Rev. Stat. §13-6-411 (2006).
[FN195]. See supra text accompanying notes 77-87.
[FN196]. See supra text accompanying notes 130-40.
[FN197]. See generally Charles Perrow, Complex Organizations: A Critical Essay (3d ed. 1986) (exploring the organizational behavior of private and public bureaucratic organizations and showing their similarities).
[FN198]. For a brilliant analogy between corporate law and administrative law as two bodies of legal doctrine devoted to justifying bureaucracy, see Gerald E. Frug, The Ideology of Bureaucracy in American Law, 97 Harv. L. Rev. 1276 (1984). For an excellent critique of the private/public distinction, see Gerald E. Frug, The City as a Legal Concept, 93 Harv. L. Rev. 1057, 1128-49 (1980).
[FN199]. An alternative classification, which our model accommodates, draws a clear distinction between governmental entities, on the one hand, and all nongovernmental entities, whether individuals or corporations, on the other. There are those who maintain that the government is a unique type of litigant, qualitatively different from all nongovernmental RPs, because the government makes the rules that the courts enforce and courts are, after all, a government agency. See, e.g., Herbert M. Kritzer, The Government Gorilla: Why Does Government Come Out Ahead in Appellate Courts?, in In Litigation, supra note 82, at 343. Notwithstanding the norm of judicial independence, some opine that judges feel loyalty toward the government of which they are a part. Id. One possible ramification of this is that in relatively close cases, judges tend to give the edge to the government party or to be more sympathetic to the government's case. See, e.g., Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 14-15 (Benjamin I. Page ed., 1991). Thus, under the alternative classification, the procedural rules governing asymmetrical litigation would be limited to instances in which the government is a party to the proceedings, whether civil or criminal, and the other party is a private entity (whether OS or RP). All other litigation involving only nongovernmental entities would be governed by symmetrical litigation procedural rules. In the continuation of our discussion below, we focus on the former classification (that which does not distinguish between private and public entities), but it should be kept in mind that our model is also workable with regard to the latter.
[FN200]. "Sanction" refers here to both criminal sanctions and civil remedies.
[FN201]. For similar claims, see Klein, supra note 105, at 721 (arguing that the extent of procedural protections should reflect the severity of the sanction); Earl C. Dudley, Jr., Getting Beyond the Civil/Criminal Distinction: A New Approach to the Regulation of Indirect Contempts, 79 Va. L. Rev. 1025, 1081, 1095 (1993) (proposing to abandon the civil-criminal distinction in contempt cases and instead provide more or less rigorous procedural protections based on the severity of the sanction).
[FN202]. See Clark, supra note 50, at 405-06, 409 (arguing that "it would be very difficult to determine the precise measure of severity embodied in a particular civil punishment on a particular occasion.... Distinguishing 'severe' from 'nonsevere' penalties on a case-by-case basis, therefore, would seem to involve the Court in a most difficult decision-making process, one which the Court might understandingly want to avoid.... The Court's continued treatment of the criminal label, and the stigma it conveys, as controlling of constitutional applications may well reflect the prudential consideration that there exists no other manageable yardstick by which to measure the type of sanction deserving the safeguards of 'criminal' procedure."). Similarly, Mary Cheh rejects the severity approach on the historical ground that the Supreme Court has never adopted it, and adds,
[W]e also should reject the sanction equivalency [i.e., severity] approach because of practical, common sense concerns. The criminal procedural protections set out in the Constitution are extremely costly and time consuming. In fact, they may add nothing to and even frustrate the goals of fairness, accuracy, and truth-finding....
Moreover, if the Court were to follow an equivalency approach, it would necessitate the development of an entirely new jurisprudence in order to identify sanctions that count--those that are not petty or de minimis. While this task would not be impossible--after all, the Court has drawn a bright line separating petty from serious criminal offenses with regard to the sixth amendment right to trial by jury--it would be daunting.
Cheh, supra note 9, at 1351.
[FN203]. E.g., O. Henry, The Cop and the Anthem, in The Best Short Stories of O. Henry 19 (Modern Library 1994). The story revolves around a New York City indigent named Lemuel T. Thwackbusher, who sets out to get arrested so he can spend the cold winter as a guest of the city jail. Despite attempts at petty theft, vandalism, disorderly conduct, and "mashing," Lemuel fails to draw the attention of the police. Disconsolate, he pauses in front of a church, where an organ anthem inspires him to clean up his life, whereupon he is promptly arrested for loitering.
[FN204]. It should be noted that the Supreme Court has held that in extradition and termination of parental rights proceedings, despite their "civil" nature and due to the severity of the sanctions, the government has to prove its case with clear and convincing evidence. See, e.g., Santosky v. Kramer, 455 U.S. 745 (1982) (termination of parental rights); Woodby v. INS, 385 U.S. 276, 285 (1966) (extradition).
[FN205]. See, e.g., United States v. James Daniel Good Real Prop., 510 U.S. 43 (1993) (concluding that the ex parte seizure of one's homestead produces a significant deprivation, unjustified by any governmental exigency, and is therefore in violation of the Due Process Clause). The Civil Asset Forfeiture Reform Act of 2000 makes an identical distinction with respect to the right to attorney representation. 18 U.S.C. §983(b)(2)(A) (2000).
[FN206]. This last proposal might encounter efficiency problems if the government bears the burden of proving that the defendant will not be placed at risk of bankruptcy as a result of the litigation. It is, therefore, suggested that this burden of proof be placed on the defendant and that only if the court is convinced will the procedure governing the litigation become more rigorous.
[FN207]. We are well aware of the fact that the standard of proof that we chose to apply in the framework of our model, due to its unparalleled importance, is a procedural safeguard that is continuous in nature, whereas some procedural safeguards, such as trial by jury or "no claim to answer," are binary. With regard to the latter safeguards, hard choices inevitably would have to be made and additional considerations would have to be taken into account. For example, while it is clear that Category D defendants would be entitled to trial by jury and Category A defendants would not be thus entitled, we might want to provide such entitlement to Category C defendants, but not to Category B defendants, due to budgetary constraints. Nevertheless, as demonstrated below, our model still sets a better allocation of procedural safeguards than currently offered under the prevailing regime. It is also noteworthy that some procedural safeguards that are supposedly binary in nature, such as assistance of counsel and discovery, can be easily conceived as continuous by translating them into monetary terms.
[FN208]. For further discussion of the clear and convincing standard of evidence, see 2 McCormick on Evidence 441-45 (John W. Strong ed., 4th ed. 1992).
[FN209]. This is not as bizarre as it might appear at first sight. An analogy can be drawn to the criminal sphere: acquittal on grounds of "not proven" can be thought of as a twenty-five percent standard of proof.
[FN210]. Galanter, supra note 77, at 98.
[FN211]. The reason for this is clarified infra in Section IV.D.
[FN212]. We will not reiterate here our critique of the state-centered justifications. The bad government argument is, in fact, a combination of the utilitarian and expressive arguments discussed above, and, therefore, there is no need to devote independent discussion to this argument. The liberal state argument is based on a misapprehension of the role and function of civil law and is, therefore, the illusion of an argument rather than a real argument.
[FN213]. Even if we were to implement an alternative boundary line between severe and lenient sanctions, such as one distinguishing between different types of monetary sanctions (forfeiture of general assets as opposed to forfeiture of one's primary residence), one could justify the set of criteria suggested by our model by referring to the decreasing marginal utility of money.
[FN214]. From the utilitarian point of view, our proposed model is advantageous not only at the ex post stage, but also ex ante. Under the current procedural regime a potential tortfeasor is likely to divert damaging activities toward INDs rather than toward IEs, even when it is less efficient to do so from a social-welfare perspective, because INDs are less likely to sue or succeed in litigation. Our model remedies this distortion by equalizing the tortfeasor's probability of being sued and found liable irrespective of the injured party's type (IND or IE), thus restricting the ex ante choice criterion to the level of harm.
[FN215]. A word of clarification is in order: in referring to power imbalances, we mean structural and categorical imbalances of power as opposed to incidental power disparities that occur frequently between litigating parties. In both the civil and criminal spheres, there will always be situations that deviate from the norm. If, for example, Mr. Bill Gates decides to sue Mr. John Smith, a middle-class American, Mr. Smith will encounter similar, if not identical, difficulties to those he would face if he were sued by Microsoft. Similarly, in the criminal sphere, individual defendants vary in the quality of legal representation that they can obtain, in ability to present their version coherently on the witness stand, and in ability to make rational decisions at the plea bargaining stage. Their relative power against the state is, therefore, not identical, and, as a result, huge disparities may evolve between litigating parties in terms of their ability to make effective use of the available procedural safeguards. Nonetheless, there is no way to avoid making some categorical generalizations. For procedure to function and accomplish its sought-after goals, it is necessary to devise criteria for making distinctions and workable rules for differentiating among the various types of individuals and legal entities. Our model, like the existing procedural regime, is unable to deal with power disparities on a case-by-case basis. Instead, it aims at correcting categorical and structural biases that operate systematically along the entire spectrum of cases. It is necessary to bear in mind that we live in a second-best world. As mentioned, even the existing set of procedures rests on categories that do not completely satisfy the whole range of cases. But in comparing the two procedural regimes, we should consider which is more likely to advance the goals of accurate judicial results (accuracy in the two-dimensional sense discussed above) and to preserve the expressive dimension of judicial decisions. We believe that our model best responds to those needs. In addition, power imbalances should be analyzed and treated categorically not just for practical reasons, but also for normative and theoretical purposes. As we have seen, there are advantages accruing to the government and government-like entities that do not arise simply due to their greater access to resources. Bill Gates, in his capacity as a private individual and not as chairman of Microsoft, does not go to court on a regular basis and is therefore not an RP to the same extent as Microsoft Corporation. Moreover, the chances of private citizens being sued by the Bill Gateses of this world are very slim. It is unusual for people to engage, in their personal lives, with people from an entirely different social stratum. Of course, Bill Gates could be involved in a car accident, and, as a result, a middle-class American could find herself forced to sue or being sued by him, but these events are rare and few and far between and, hence, do not pose a serious challenge to our model.
[FN216]. The Supreme Court has stated that "[i]t is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned." In re Winship, 397 U.S. 358, 364 (1970).
[FN217]. Kahan, supra note 48, at 593.
[FN218]. For a similar claim with regard to turning the standard of proof into a negotiable default rule, see supra note 121.
[FN219]. Kahan, supra note 48, at 593.
[FN220]. One possible objection to our argument is that people are less aware of procedure and therefore are unable to assign the correct social sanction based on the type of conviction, which results in the dilution of the stigmatizing power of the criminal conviction. See Bierschbach & Stein, supra note 46, at 1749-50. We disagree. Despite the widely held belief that people are interested in substantive outcomes rather than in procedure, socio- psychological studies suggest that, in reality, people decide how legitimate authorities are primarily based on an assessment of the fairness of their decisionmaking procedures and not by their substantive outcomes. See Tom R. Tyler, Procedural Justice, in The Blackwell Companion to Law and Society 435, 442 (Austin Sarat ed., 2004); see also E. Allan Lind & Tom R. Tyler, The Social Psychology of Procedural Justice 1 (Melvin J. Lerner ed., 1988). Moreover, the claim that the public lacks the ability to distinguish between outcomes secured under different types of procedural regimes is a two-edged sword, as it undermines the very basis on which the expressive argument rests. Either the public is sophisticated enough to distinguish between the outcomes of different types of procedure or it is not. If it is, then there is no reason to assume that special difficulties will arise under the proposed model. If, however, the public lacks the degree of sophistication necessary for such distinctions, then the expressive argument fails, since it relies upon the ability of the public to appreciate the message communicated to it by criminal, as opposed to civil, procedure.
[FN221]. See Ely, supra note 153, at 1311-13 n.324 (arguing that the need to find punishment is not critical to constitutional decisionmaking because the requirement of procedural due process does not disappear if a law is not punitive); Schulhofer, supra note 151, at 79 (arguing that the "determinative character of the civil-criminal distinction in constitutional law may be more apparent than real," for even if the constitutional amendments apply by their terms only to criminal cases, the Due Process Clause could be "pressed into service" to mandate the provision of similar safeguards in civil cases that involve serious deprivation).
[FN222]. See Leubsdorf, supra note 16, at 601-02.
[FN223]. See William J. Stuntz, The Political Constitution of Criminal Justice, 119 Harv. L. Rev. 780, 782, 791 (2006).
[FN224]. See generally Lon L. Fuller, Positivism and Fidelity to Law--A Reply to Professor Hart, 71 Harv. L. Rev. 630, 662-63 (1958) (arguing that no word ever has a standard meaning for purposes of statutory interpretation and, therefore, meaning can only be ascribed by reference to statutory purpose in a given context).
[FN225]. See, e.g., Blanton v. N. Las Vegas, 489 U.S. 538, 539 (1989) (finding no "right to a trial by jury for persons charged under Nevada law with driving under the influence of alcohol"); Baldwin v. New York, 399 U.S. 66, 68 (1970) ("[S]o-called 'petty offenses' may be tried without a jury.").
[FN226]. See Scott v. Illinois, 440 U.S. 367, 369 (1979) (holding that there is no constitutional right to appointed counsel in misdemeanor cases in which no imprisonment is imposed).
[FN227]. Clark, supra note 50, at 399.
[FN228]. See Browning-Ferris Indus. v. Kelco Disposal, 492 U.S. 257, 263- 64 (1989).
[FN229]. 397 U.S. 358, 368 (1970).
[FN230]. Of the Disqualification of Parties as Witnesses, 5 Am. L. Reg. 257 (1857); see also John H. Langbein, The Origins of Adversary Criminal Trial 37-38 (A. W. Brian Simpson ed., 2003).
[FN231]. For an account of the history of the rule and its abolition, see Joel N. Bodansky, The Abolition of the Party-Witness Disqualification: An Historical Survey, 70 Ky. L.J. 91 (1981-1982).
[FN232]. Langbein, supra note 230, at 261-66.
[FN233]. Id. at 10.