Comparative Law Without Leaving Home: What Civil Procedure Can Teach Criminal Procedure, and Vice Versa

Georgetown Law Journal, Mar 2006 by Sklansky, David A, Yeazell, Stephen C

INTRODUCTION

This is a plea for comparative work in civil and criminal procedure. We do not argue here that American civil and criminal procedure should be counter-poised more frequently with their analogs overseas. Surely that is true, but both the need for and the difficulties associated with this kind of work are well understood. We argue instead for something at once more straightforward and more radical: regularly contrasting American civil and criminal procedure with each other. This is a plea for comparative work in our own backyards. It seeks to demonstrate that such work has benefits, illuminating the significance of overlooked features and providing a more stable base for reform.

Civil litigation and criminal litigation in the contemporary United States occupy separate worlds. They employ different procedural rules, often before different judges in different courthouses, and with almost entirely unconnected bars, each of which views the other with an attitude verging on contempt. In law schools, civil and criminal process are taught in separate courses by scholars whose ranks rarely overlap and who read little of the work produced by their opposite numbers.1 Many judges, of course, still hear a mixture of civil and criminal cases; that is the practice in federal court, as well as in many state and local courts, particularly outside of big cities. Aside from this point of contact, though, there is little else to suggest that the two dockets are part of the same legal system.

Precisely because civil and criminal procedure differ so strikingly today, drawing comparisons between the two sets of rules can be difficult, and the utility of the exercise can seem doubtful. What, for example, is the modern, criminal equivalent of civil doctrines of standing? What are the civil analogs to probation and parole? Comparing civil and criminal procedure can seem like comparing tangerines and socket wrenches, or like suggesting that barbers and surgeons, who after all share some professional history, should exchange notes more often today. Maybe civil and criminal procedure are rarely compared today because, in fact, they are incomparable.

We think otherwise. Our grounds are basically two.

First, despite everything, civil and criminal procedure still have a lot in common. They are both, after all, systems of adjudicating-or otherwise resolving-disputes, and settling-or sidestepping-disagreements about historical facts. They both aim at fairness, accuracy, and efficiency-albeit in different mixtures. They share similar stages: pleading, discovery, trial or settlement, and appeal. They share the institution of the jury. They both have rules designed to protect the finality of judgments. Civil litigation, we will argue in this Article, has been essentially privatized, whereas criminal litigation is today more or less a government monopoly. But enough points of commonality remain to make systematic comparison appear worthwhile, even accepting the degree to which the criminal-civil divide has come to parallel the public-private divide.

Second, there are reasons to doubt the wisdom of replicating the public-private divide in the world of legal process. Many of the complaints raised about civil litigation today can be understood as objections to how far it has been privatized-how little regard the process seems to have for the broader public interest. Conversely, some of the loudest criticisms of criminal process over the past couple of decades have been about the way the system ignores the "private" interests of victims.

We certainly do not contend that civil and criminal cases have no important differences and should be treated the same. There are large differences between the two categories of cases, and comparisons between them, if drawn carelessly, can be dangerously misleading. We will pause occasionally in the following pages to point out some of those dangers. But we do think civil and criminal process can each learn things from the other-including a keener understanding of its own nature, and a healthy degree of skepticism about its own assumptions. In civil process today, important critiques are too often brushed aside with appeals to the notion that the public's only interest is in rough fairness between the parties and in moving the docket along. The state's role as a guarantor of fair and accurate results has become vestigial. Meanwhile criminal process has taken on some of the less attractive features of government bureaucracies, including a pronounced institutional inertia and a resistance to the involvement of interested third parties.

S.F.C. Milsom has argued that a special genius of the common law, one that partly offsets its untidiness and inconsistency, is the ability to provide points of comparison and alternative solutions to problems that present themselves in more than one setting.2 Civil and criminal procedure offer underappreciated opportunities for precisely this kind of cross-pollination. Misled by the sense that the two realms have entirely different goals, we have asked too infrequently whether they have anything to teach each other. We are more likely to contemplate borrowing practices from a foreign legal system than from the next courtroom over. There is nothing wrong with international comparison; we could use a good deal more of it. But we should not ignore the similar opportunities closer to home.