The Multiple Middlegrounds between Civil and Criminal Law

Abstract

My reactions to Kenneth Mann's original and insightful essay are organized under four headings. Part I offers a short recital of the academic complaints that are a compulsory part of this sort of exercise. Part II outlines three different types of MIddleground innovations between civil and criminal law and argues that the type of innovation chosen is a significant element in the calculus of the due process standards that should be imposed on governmental action. Part III suggests that the growth of administrative government and the need for administrative agencies to control their own enforcement agendas are the dominant reasons for the evolution of punitive civil sanctions at the federal level. Other factors Professor Mann lists, such as burden of proof and procedural protection for defendants, hold much less significance in explaining the boom in middleground civil sanctions. Finally, Part IV suggests that as the number and kind of criminal sanctions expand, the case for allowing punitive civil remedies rests on the comparative advantage of agency-managed enforcement efforts.