When should a regulator prefer criminal sanctions over administrative sanctions? What procedural protections should apply if a process is labeled civil but the sanctions are, in fact, criminal in type? And can the state justifiably conduct parallel proceedings for punitive sanctions against the same person or entity for the same conduct?
Throughout the years, judges and scholars alike have tried to understand and classify administrative sanctioning. Common to all of these conceptions is their failure to provide a complete normative framework for this unique body of law, which in turn makes it difficult to identify its practical limits and to resolve the practical difficulties mentioned above.
This Article proposes a novel, normative paradigm for understanding administrative sanctioning. This Article suggests that an administrative violation is a manifestation of an ex-ante excessive risk to public right. Based on the rationale of corrective justice, administrative sanctions correct the excessive risk in the form of a preventative sanction. Thus administrative sanctioning restores equality in the correlative relations between the violator and the public right. The Article applies this suggested approach to address some of the practical difficulties administrative sanctioning raises.
Eithan Y. Kidron,
Understanding Administrative Sanctioning as Corrective Justice,
U. Mich. J. L. Reform
Available at: https://repository.law.umich.edu/mjlr/vol51/iss2/2