civil remedy v. criminal penalty

[justice]

When trying to show that a civil remedy is actually punitive in nature, despite the claims of other purposes for the remedy, there are 7 factors that must be shown...

#3 is if the action is triggered only upon a finding of scienter. Please explain this.

Thank you in advance for your help.

 

[Michael Wechsler]

Scienter is a legal term that means that the person guilty/liable had the requisite knowledge that what he/she was doing was wrongful or that the act would incur liability.

 

[justice]

Thank you

Thank you. I finally managed to get that part figured out. But, in proving the seven Kennedy factors, does it have to beshown that the penalty enabling legislation is unconstitutional on its face, rather than as applied? In the referrences I've researched on the matter, there is some discrepancy....

 

[Michael Wechsler]

Depends what you are attacking. If you are attacking the process, then you need only to show law in application is unconstitutional as applied to you. For an attack on the substance of the law then you would need to show that the statute itself is unconstitutional inherently.