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42 Hastings L.J. 1325 (1990-1991)
Constitutional Limits on Using Civil Remedies to Achieve Criminal Law Objectives: Understanding and Transcending the Criminal-Civil Law Distinction

handle is hein.journals/hastlj42 and id is 1351 raw text is: Constitutional Limits on Using Civil Remedies To Achieve Criminal Law Objectives: Understanding and Transcending the Criminal- Civil Law Distinction by MARY M. CHEH* I. Introduction Today, the distinction between criminal and civil law seems to be collapsing across a broad front. Although the separation between criminal and civil cases is a legal creation both imperfect and in- complete,' this basic division has been a hallmark of English and American jurisprudence for hundreds of years. The Constitution, statutes, and the common law all draw fun- damental distinctions between criminal proceedings, which empha- size adjudication of guilt or innocence with strict adversarial protections for the accused, and civil proceedings, which emphasize the rights and responsibilities of private parties. We have separate criminal and civil courts, employing different rules of procedure, burdens of proof, rules of discovery, investigatory practices, and modes of punishment.2 This distinction is cemented in every law stu- dent's mind by the division of the law school curriculum into criminal and civil categories. Now, however, there is a rapidly accelerating tendency for the government to punish antisocial behavior with civil remedies such as injunctions, forfeitures, restitution, and civil fines. Sometimes civil * Professor of Law, The National Law Center, George Washington University. B.A. 1972, J.D. 1975, Rutgers University; LL.M. 1977, Harvard University. Author's Note: Funding for this Article was provided by the National Institute of Justice, U.S. Department of Justice, under contract OJP-86-C-002. Opinions stated in the Article are those of the author and do not necessarily represent the position or policies of the U.S. Department of Justice. 1. See, e.g., Hall, Interrelations of Criminal Law and Torts: I, 43 COLuM. L. REv. 753, 756-60 (1943). 2. See, e.g., Smith, The Risk of Legal Error in Criminal Cases: Some Consequences of the Asymmetry in the Right to Appeal, 57 U. Cm. L. REv. 1, 3 (1990) (in criminal cases, unlike civil ones, a defendant can appeal a conviction by alleging legal error favorable to the government, but the government cannot appeal an acquittal by alleging error favorable to the defendant). [13251

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