This is a companion piece to an article appearing in the Georgetown Law Journal in November 2005, which sets forth a new theory for distinguishing civil measures from criminal measures for constitutional purposes. This article discusses the most controversial implications of the Systemic Social Effect Theory and defends it against alternative theories for distinguishing the two sanctions. By preserving the strengths of the alternative theories while avoiding their weaknesses, the Systemic Social Effect Theory integrates constitutional policy and self-consistent jurisprudence with a viable legal theory.
The full text of this Article is available to download as a PDF.