March 2008, Volume 94, Issue 1
Overcoming Procedural Boundaries
by Issachar Rosen-Zvi & Talia Fisher
94 Va. L. Rev. 79 (2008)
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This article questions one of the most deeply-rooted taxonomies of modern legal thought, that dividing civil and criminal procedure. It highlights 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, while ensuring sweeping procedural safeguards for people and institutions facing only trivial criminal sanctions. Many justifications have been offered for the civil-criminal rift in procedure. Some argue that the distinction rests on utilitarian grounds, while others point to egalitarian rationales. Still others invoke the expressive role played by procedure, with others focusing on the unique role of the state in a liberal democracy. The article challenges each of these rationales, showing that they are obsolete, if not completely unfounded, and proposes a simple alternative: cutting the Gordian knot binding substance to procedure and replacing the current bifurcated civil-criminal procedural regime with a model running along two axes: the balance of power between the litigating parties and the severity of the potential sanction or remedy. The balance of power axis refers to the model's two sets of procedural rules, aimed at remedying asymmetry problems inherent to litigation. One set of rules would govern symmetrical litigation, that is, where both parties are either institutional entities (comprised of both governmental bodies and large organizational entities such as big corporations and financial institutions) or else individuals (including small businesses); a second set of rules would govern asymmetric litigation, involving an individual on one side and an institutional entity on the other. The model's second axis focuses on the degree of harm that would be generated by an adverse decision for the litigating parties, irrespective of whether the substantive legal regime governing the dispute is civil or criminal. Applying these two parameters, our proposed procedural regime maps out the entire procedural landscape. The resulting redistribution of procedural protections diverges significantly from the current regime. The article shows that the proposed model, as a regime based on the true goals of procedure, in fact, better realizes the ends underlying the rationales used to justify the current procedural regime. It concludes with some remarks about the feasibility of such a reform.
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