Hostname: page-component-586b7cd67f-g8jcs Total loading time: 0 Render date: 2024-11-30T19:01:14.166Z Has data issue: false hasContentIssue false
  • English
  • Français

State Intervention and the Civil Offense

Published online by Cambridge University Press:  01 July 2024

Arie Freiberg  and
Pat O'Malley
Rights & Permissions [Opens in a new window]

Abstract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

The growth of state interventionism, especially in the post-war era, has been associated with the proliferation of legal innovations. This paper examines the development of novel hybridizations of civil and criminal forms, developed largely to facilitate state regulation. Such hybrids, referred to here as civil offenses, combine civil proceedings, often referred to as prosecutions, with notions of convictions for which penalties are imposed. The advantages accruing to the state from such “ambiguous” forms include favorable standards of proof, rules of interpretation, extending responsibility, retroactivity, suspension of mens rea, and a wide array of novel sanctions.

Type
Research Article
Information
Law & Society Review , Volume 18 , Issue 3 , 1984 , pp. 373 - 394
Copyright
Copyright © 1984 The Law and Society Association

References

References

ABEL, Richard L. (ed.) (1982a) The Politics of Informal Justice, Vol. 1. New York: Academic Press.Google Scholar
ABEL, Richard L. (1982b) “The Contradictions of Informal Justice,” in Abel, R. (ed.), The Politics of Informal Justice, Vol. 1. New York: Academic Press.Google Scholar
ATIYAH, P.S. (1979) The Rise and Fall of Freedom of Contract. Oxford: Clarendon Press.Google Scholar
BALL, Harry V. and Lawrence M., FRIEDMAN (1965) “The Use of Criminal Sanctions in the Enforcement of Economic Legislation: A Sociological Review,” 17 Stanford Law Review 197.Google Scholar
BICKART, David O. (1977) “Civil Penalties under Section 5(m) of the Federal Trade Commission Act,” 44 University of Chicago Law Review 761.Google Scholar
BLAKEY, G. Robert and Brian, GETTINGS (1980) “Racketeer Influenced and Corrupt Organizations (RICO): Basic Concepts—Criminal and Civil Remedies,” 53 Temple Law Quarterly 1009.Google Scholar
CARSON, W.G. (1974) “The Sociology of Crime and the Emergence of Criminal Laws,” in Rock, P. and Mcintosh, M. (eds.), Deviance and Social Control. London: Macmillan.Google Scholar
Mcintosh, M. (1980) “The Institutionalization of Ambiguity: Early British Factory Acts,” in Geiss, G. and Stotland, E. (eds.), White Collar Crime: Theory and Research. Beverly Hills: Sage Publications.Google Scholar
CHARNEY, Jonathan I. (1974) “The Need for Constitutional Protections for Defendants in Civil Penalty Cases,” 59 Cornell Law Review 478.Google Scholar
COHEN, S. (1979) “The Punitive City: Notes on the Dispersal of Social Control,” 3 Contemporary Crises 339.Google Scholar
CRONIN, Robert P. and Raymond J., BRASSARD (1970) “A Civil Solution to the Problem of Organized Crime—The Florida Approach,” 11 Boston College Industrial and Commercial Law Review 974.Google Scholar
DESSION, George H. (1955) “The Technique of Public Order: Evolving Concepts of Criminal Law,” 5 Buffalo Law Review 22.Google Scholar
DEVLIN, Patrick (1956) Trial by Jury. London: Stevens & Sons.Google Scholar
DIVER, Colin S. (1979) “The Assessment and Mitigation of Civil Money Penalties by Federal Administrative Agencies,” 79 Columbia Law Review 1435.Google Scholar
DRAYTON, W. (1980) “Economic Law Enforcement,” 11 Land Use and Environmental Law Review 51.Google Scholar
FISSE, Brent (1968) “The Delegation Principle: Vicarious Liability in Regulatory Offences,” 10 Criminal Law Quarterly 417.Google Scholar
FLEMING, John G. (1983) The Law of Torts, 6th Ed. Sydney: Law Book Co.Google Scholar
FRASER, A. (1976) “Legal Theory and Legal Practice,” 44/45 Arena 123.Google Scholar
GLASBEEK, Harry J. and Susan, ROWLAND (1979) “Are Injuring and Killing at Work Crimes?” 17 Osgoode Hall Law Journal 506.Google Scholar
GLASSMAN, Harry P. (1962) “Why Don't We Teach Criminal Law?” 15 Journal of Legal Education 37.Google Scholar
GOLD, Paula W. and Robert D., COHAN (1977) “State Protection of the Consumer: Integration of Civil and Criminal Remedies,” 12 New England Law Review 933.Google Scholar
GUNNINGHAM, N. and B., CREIGHTON (1980) “Industrial Safety Law in Social and Political Perspective,” in Tomasic, R. (ed.), Legislation and Society in Australia. Sydney: Allen and Unwin.Google Scholar
HALL, Jerome (1960) General Principles of Criminal Law, 2nd Ed. Indianapolis: Bobbs-Merrill.Google Scholar
HARVARD LAW REVIEW (1979) “Developments in the Law: Corporate Crime: Regulating Corporate Behavior Through Criminal Sanctions,” 92 Harvard Law Review 1227.CrossRefGoogle Scholar
HEYDEBRAND, Wolf (1979) “The Technocratic Administration of Justice,” in Spitzer, S. (ed.), Research in Law and Sociology, Vol. 2. Greenwich, CT: J.A.I. Press.Google Scholar
HOPKINS, Andrew (1978) Crime Law and Business. Canberra: Australian Institute of Criminology.Google Scholar
JUSTICE (British Section of the International Commission of Jurists) (1980) Breaking the Rules: The Problem of Crimes and Contraventions. London: Justice.Google Scholar
KIRST, Roger W. (1978) “Administrative Penalties and the Civil Jury: The Supreme Court's Assault on the Seventh Amendment,” 126 University of Pennsylvania Law Review 1281.Google Scholar
KOENIG, Linda and Doris, GODINEZ-TAYLOR (1982) “The Need for Greater Double Jeopardy and Due Process Safeguards in RICO Criminal and Civil Actions,” 70 California Law Review 724.Google Scholar
LEVIN, Michael H. (1977) “Crimes Against Employees: Substantive Criminal Sanctions Under the Occupational Safety and Health Act,” 14 American Criminal Law Review 717.Google Scholar
LEVINSON, Michael (1980) “Deterring Air Polluters Through Economically Efficient Sanctions: A Proposal for Amending the Clean Air Act,” 32 Stanford Law Review 807.Google Scholar
MAHER, F. (1983) “The Ghost in the Machine: Myths and Facts about Retrospectivity,” 57 Law Institute Journal 183.Google Scholar
MARSHALL, David W. (1975) “Environmental Protection and the Role of the Civil Money Penalty: Some Practical and Legal Considerations,” 4 Environmental Affairs 323.Google Scholar
MEAGHER, D. (1983) Organised Crime. Canberra: Australian Government Printing Service.Google Scholar
MORRIS, Joe S. (1972) “Environmental Problems and the Use of Criminal Sanctions,” 7 Land and Water Law Review 421.Google Scholar
NEWMAN, O. (1981) The Challenge of Corporatism. London: Macmillan.Google Scholar
NORTHWESTERN UNIVERSITY LAW REVIEW (1973) “Comment: The Quasi-Criminal Ordinance Prosecution in Illinois,” 68 Northwestern University Law Review 566.Google Scholar
OLDS, David M., UNKOVTC, John C. and Jeff L., LEWTN (1978-79) “Thoughts on the Role of Penalties in the Enforcement of the Clean Air and Clean Water Acts,” 17 Duquesne Law Review 1.Google Scholar
O'MALLEY, Pat (1982) “The Invisible Censor: Civil Law and the State Delegation of Press Control 1890-1952,” 4 Media, Culture and Society 323.Google Scholar
O'MALLEY, Pat (1983) Law, Capitalism and Democracy: A Sociology of Australian Legal Order. Sydney: Allen and Unwin.Google Scholar
PAULUS, Ingeborg (1974) The Search for Pure Food: A Sociology of Legislation in Britain. London: Martin Robertson.Google Scholar
PAULUS, Ingeborg (1978) “Strict Liability: Its Place in Public Welfare Offences,” 20 Criminal Law Quarterly 445.Google Scholar
PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND THE ADMINISTRATION OF JUSTICE (1967) The Challenge of Crime in a Free Society. Washington, D.C.: U.S. Government Printing Office.Google Scholar
SAYRE, Francis B. (1930) “Criminal Responsibility for the Acts of Another,” 43 Harvard Law Review 689.Google Scholar
SAYRE, Francis B. (1933) “Public Welfare Offenses,” 33 Columbia Law Review 55.Google Scholar
SHEARING, Clifford D. and Phillip C., STENNING (1981) “Modern Private Security: Its Growth and Implications,” in Tonry, M. and Morris, N. (eds.), Crime and Justice: An Annual Review of Research, Vol. 3. Chicago: University of Chicago Press.Google Scholar
SMITH, J.C. and Brian, HOGAN (1983) Criminal Law, 5th Ed. London: Butterworths.Google Scholar
SUNSTEIN, Cass R. (1982) “Section 1983 and the Enforcement of Federal Law,” 49 University of Chicago Law Review 394.Google Scholar
TEXAS LAW REVIEW (1975) “Note: Criminal Law—Enforcing Criminal Laws Through Civil Proceedings,” 53 Texas Law Review 1055.Google Scholar
THAU, Jonathan C. (1982) “Collateral Estoppel and the Reliability of Criminal Determinations: Theoretical, Practical, and Strategic Implications for Criminal and Civil Litigation,” 70 Georgetown Law Journal 1079.Google Scholar
TOPOL, Noel S. (1975) “Civil Penalties—More or Less?” 10 Gonzaga Law Review 669.Google Scholar
VEITCH, Edward and David, MIERS (1975) “Assault on the Law of Tort,” 38 Modern Law Review 139.Google Scholar
WEBER, M. (1954) On Law in Economy and Society. Cambridge: Harvard University Press.Google Scholar
WINKLER, J.T. (1975) “The Corporate Economy: Theory and Administration,” in Scase, R. (ed.), Industrial Society: Class Cleavage and Control. London: Allen and Unwin.Google Scholar

Cases Cited

Atlas Roofing Co. v. Occupational Safety and Health Review Commission, 430 U.S. 442 (1977).Google Scholar
Beckwith v. R, 12 Austl. L.R. 333 (Austl. 1976).CrossRefGoogle Scholar
Cameron v. Holt, 142 C.L.R. 342 (Austl. 1980).Google Scholar
J. I. Case Co. v. Borak, 377 U.S. 426 (1964).Google Scholar
The King v. Adams, 53 C.L.R. 563 (Austl. 1935).CrossRefGoogle Scholar
The King v. Kidman, 20 C.L.R. 425 (Austl. 1915).Google Scholar
Lloyd Sabardo Societa Anonima Per Azioni v. Elting, 287 U.S. 329 (1932).Google Scholar
Millner v. Raith, 66 C.L.R. 1 (Austl. 1942).CrossRefGoogle Scholar
Morissette v. United States, 342 U.S. 246 (1952).Google Scholar
Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320 (1909).Google Scholar
The Queen v. Griffiths, [1891] 2 Q. B. 145.Google Scholar
Regina v. City of Saulte Ste. Marie, 85 D.L.R. 3d 161 (Can. 1978).Google Scholar
United States v. Cappetto, 502 F.2d 1351 (7th Cir. 1974), cert, denied, 420 U.S. 925 (1975).Google Scholar