Eli Nachmany (Covington & Burling LLP) has posted The Civil-Criminal Convergence (59 Wake Forest Law Review 693 (2024)) on SSRN. Here is the abstract:
Federal courts take criminal law seriously. Indeed, a particular solicitude for the criminal process undergirds several legal doctrines. These doctrines generally require courts to distinguish between civil and criminal law. Despite this requirement, the line between civil and criminal law is often blurry. That is especially true in administrative law, as administrative agencies frequently take punitive enforcement actions against private parties. And in the civil context, courts have long applied seemingly special criminal law doctrinal carveouts and constitutional protections. This Article takes account of the convergence of civil and criminal law.
The application of criminal law doctrines in civil cases has often been about procedural protections. But the next frontier appears to be substantive review. Indeed, some even argue that substantive review doctrines that are usually framed as specific to criminal law—the void-for-vagueness doctrine and the rule of lenity, for example—have always been appropriate to apply in civil cases. Looking ahead, a shift in administrative law may be forthcoming. Much of the focus in administrative law right now is on doctrines like nondelegation and major questions, which arguably vindicate the separation of powers. But the civil-criminal convergence may introduce doctrines like void-for-vagueness and lenity into litigants’ toolkits in agency cases. These doctrines focus more on individual liberty than on separation of powers, and raising them in regulatory litigation could shift the framing of key challenges to agency action.
Highly recommended.
