Center for Law and Economic Studies
Center on Corporate Governance
Ken Mann's professed goal is to "shrink" the criminal law. To realize this worthy end, he advocates punitive civil sanctions that would largely parallel criminal sanctions, thereby reducing the need to use criminal law in order to achieve punitive purposes. I agree (heartily) with the end he seeks and even more with his general precept that "the criminal law should be reserved for the most damaging wrongs and the most culpable defendants." But I believe that the means he proposes would be counterproductive – and would probably expand, rather than contract, the operative scope of the criminal law as an engine of regulation and social control.
The differences in our analyses follow from differences in our perspectives. Professor Mann's focus is largely doctrinal and basically centers on the question of whether courts will accept candidly punitive civil penalties. My perspective is more behavioral and focuses on incentives: what would regulators and private enforcers do under a legal system that largely overlaid punitive civil sanctions on top of criminal penalties? We also begin from different starting points. Although we both agree that the line between civil and criminal penalties is rapidly collapsing, Professor Mann sees (and favors) the encroachment of the civil law upon the criminal law. I see more of the reverse trend: the encroachment of the criminal law into areas previously thought to be civil or "regulatory" in character. Thus, I want to resist encroachment, while he wishes to encourage it in order to give enforcement authorities the less drastic remedy of civil penalties.
John C. Coffee Jr.,
Paradigms Lost: The Blurring of the Criminal and Civil Law Models – And What Can be Done About It,
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/236