For those who have studied the blurry distinction between the civil law and the criminal law, it is natural to consider jettisoning the procedural divide between the two. Almost none of the literature on the subject, though, describes how the two bodies of law could be merged, or even takes the stance that they should be merged. Rather, scholars have tended to look for new standards or tests to help place a sanction within one of the two existing categories, to enhance the procedural protections available in certain civil proceedings, or to propose a new additional category for hybrid sanctions.
Professors Issachar Rosen-Zvi and Talia Fisher make a valuable contribution to the discussion by finally advancing a plausible way to dispense with the criminal-civil procedural bifurcation. They propose making procedural protections contingent solely upon the severity of the sanction and upon the symmetry (or lack thereof) between the adversarial parties in the proceeding. This approach eliminates the need to draw false distinctions between nearly identical sanctions, to divine a legislature’s motivation, or to apply procedural safeguards that are either excessively high or dangerously low. But the authors’ attempt to erase boundaries ends up erecting new ones, which are perhaps equally arbitrary and dysfunctional.
Professors Rosen-Zvi and Fisher acknowledge that their proposed procedural model is not a finished product, so in this brief reply, I hope to direct their attention and others’ to a few areas that warrant closer examination.