University of California, Los angeles Public Law legal Theory research Paper Series COMPARATIVE LAW WITHOUT LEAVING HOME WHAT CIVIL PROCEDURE CAN TEACH CRIMINAL PROCEDURE AND VICE VERSA DAVID A SKLANSKY and STEPHEN C. YEAZELL Research Paper No 059 This paper may be downloaded without charge The Social Science Research Network Electronic Paper Collection http://ssrn.com/abstract=706601 aRaDi novation UCLA SCHOOL OF LAW
University of California, Los Angeles School of Law Public Law & Legal Theory Research Paper Series COMPARATIVE LAW WITHOUT LEAVING HOME: WHAT CIVIL PROCEDURE CAN TEACH CRIMINAL PROCEDURE, AND VICE VERSA DAVID A. SKLANSKY and STEPHEN C. YEAZELL Research Paper No. 05-9 This paper may be downloaded without charge at: The Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract=706601
COMPARATIVE LAW WITHOUT LEAVING HOME WHAT CIVIL PROCEDURE CAN TEACH CRIMINAL PROCEDURE, AND VICE VERSA David A Sklansky Stephen C. Yeazell This is a plea for comparative work in civil and criminal procedure. We do not argue here that American civil and criminal pI ocedure e cou 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 ignificance 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. 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, drawin 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 Law. The authors are particularly indebted to Norman Abrams, Alison Anderson, Stephen Bundy, Ann Carlson, Pamela Karlan, Kenneth Karst, Daniel Klerman, John Langbein, Maximo Langer, william Rubenstein, David Shapiro, Eleanor Swift, and Charles Weisselberg for helpful criticism of earlier drafts Charles D'Itri and the Hugh Hazel Darling Law Library for research assistance, and the UCLA Academic Senate and the UCLA School of Law Deans Fund for financial support David g. price and Dallas P price professor of law. UCLA School of law With some distinguished exceptions, of course. See, e.g., ROBERT M. COVER, OWEN M. FisS JUDITH RESNIK, PROCEDURE9-21,428-53,581-88,606-11,649-58,764-76,77779,788-829,1147-67, 1573-79, 1580-83 1668-74(1988: OwN M. Fiss JUDITH RESNIK, ADJUDICATION AND ITS ALTERNATIVES: AN INTRODUCTION TO PROCEDURE 14-26, 149-51, 645-48, 772-77(2003)
COMPARATIVE LAW WITHOUT LEAVING HOME: WHAT CIVIL PROCEDURE CAN TEACH CRIMINAL PROCEDURE, AND VICE VERSA David A. Sklansky* & Stephen C. Yeazell** 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 counterpoised 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. * Professor of Law, UCLA School of Law; Visiting Professor of Law, U.C. Berkeley School of Law. The authors are particularly indebted to Norman Abrams, Alison Anderson, Stephen Bundy, Ann Carlson, Pamela Karlan, Kenneth Karst, Daniel Klerman, John Langbein, Máximo Langer, William Rubenstein, David Shapiro, Eleanor Swift, and Charles Weisselberg for helpful criticism of earlier drafts; Charles D’Itri and the Hugh & Hazel Darling Law Library for research assistance; and the UCLA Academic Senate and the UCLA School of Law Dean’s Fund for financial support. ** David G. Price and Dallas P. Price Professor of Law, UCLA School of Law. 1 With some distinguished exceptions, of course. See, e.g., ROBERT M. COVER, OWEN M. FISS & JUDITH RESNIK, PROCEDURE 9-21, 428-53, 581-88, 606-11, 649-58, 764-76, 777-79, 788-829, 1147-67, 1573-79, 1580-83 1668-74 (1988); OWN M. FISS & JUDITH RESNIK, ADJUDICATION AND ITS ALTERNATIVES: AN INTRODUCTION TO PROCEDURE 14-26, 149-51, 645-48, 772-77(2003)
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 essay, 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 states 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. 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 foreig legal system than from the next courtroom 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 2 See S F.C. Milsom, Reason in the Development of the Common Law, 81 LAW Q. REV. 49 (1965), reprinted in S.F.C. MILSOM, STUDIES IN THE HISTORY OF THE COMMON LAW 149(1985)
2 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 essay, 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. 2 See S.F.C. Milsom, Reason in the Development of the Common Law, 81 LAW Q. REV. 496 (1965), reprinted in S.F.C. MILSOM, STUDIES IN THE HISTORY OF THE COMMON LAW 149 (1985)
Domestic comparison, in fact, may have some advantages over international comparative law. One of the notorious problems of the latter enterprise is that the systems under scrutiny are so embedded in their own respective cultures that transplants and borrowings--indeed, sometimes even meaningful comparisons--prove difficult American civil and criminal process, on the other hand, have grown from the same social and political soil. It should therefore be possible to draw comparisons with greater confidence and to contemplate borrowings with less worrying about what will be lost in "translation This is an important point, because by international standards the similarities between American criminal and civil process are probably more striking than their differences. Broadly speaking, the Continental legal tradition has distinguished ever more sharply than the Anglo-American tradition between public and private, and between criminal and civil. To call for more cross-comparison between American civil and criminal process is thus to call, in a sense, for widening the divide between the American legal system, taken as a whole, and its Continental analogs. We think the trade-off is worthwhile, for reasons we will explain, but it should be recognized at the outset In the pages that follow we seek to demonstrate what is lost when civil and criminal process are treated as incomparable, and what is gained when they are not. We first provide some historical context. Although the divide between civil and criminal process is quite old, the current contours of that divide are not. One needs to go back only a century or so to find a world in which the chasm was far narrower than it is today Revisiting that world helps to underscore the contingency of our current thinking about civil and criminal process, and will provide the conceptual platform for the remainder of The second part of the essay describes four areas in which modern civil and criminal process address similar problems in starkly different ways--settlement, finality, discovery, and remedies for failed process. In each of these areas, we suggest, criminal process and civil process each has something to teach the other. Civil settlement practie might profitably borrow from the tradition on the criminal side that case dispositions need judicial approval; criminal practice might learn from the tradition on the civil side of involving judges in the negotiations leading up to settlement. The notorious complexity of double jeopardy law could be alleviated--and the oddity of some of its features made e apparent-by more frequent comparison with civil doctrines of former djudication. Civil discovery might benefit from some of the limiting mechanisms of riminal discovery; criminal discovery might profitably emulate, to some degree, the symmetry of civil discovery. And lessons can be learned from comparing the law of S See, e.g, MIRJAN R DAMASKA, THE FACES OF JUSTICE AND STATE AUTHORITY(1986); John H angbein, The Influence of Comparative Procedure in the United States, 43 AM J COMP L 545(1995) Maximo Langer, From Legal Transplants to Legal Translations: The Globalization of Plea bargaining Ind the Americanization Thesis in Criminal Procedure, 45 HARV. INT'L L.J. 1(2004) Langer, supra note 3, at 29-35
3 Domestic comparison, in fact, may have some advantages over international comparative law. One of the notorious problems of the latter enterprise is that the systems under scrutiny are so embedded in their own respective cultures that transplants and borrowings—indeed, sometimes even meaningful comparisons—prove difficult.3 American civil and criminal process, on the other hand, have grown from the same social and political soil. It should therefore be possible to draw comparisons with greater confidence and to contemplate borrowings with less worrying about what will be lost in "translation."4 This is an important point, because by international standards the similarities between American criminal and civil process are probably more striking than their differences. Broadly speaking, the Continental legal tradition has distinguished even more sharply than the Anglo-American tradition between public and private, and between criminal and civil. To call for more cross-comparison between American civil and criminal process is thus to call, in a sense, for widening the divide between the American legal system, taken as a whole, and its Continental analogs. We think the trade-off is worthwhile, for reasons we will explain, but it should be recognized at the outset. In the pages that follow we seek to demonstrate what is lost when civil and criminal process are treated as incomparable, and what is gained when they are not. We first provide some historical context. Although the divide between civil and criminal process is quite old, the current contours of that divide are not. One needs to go back only a century or so to find a world in which the chasm was far narrower than it is today. Revisiting that world helps to underscore the contingency of our current thinking about civil and criminal process, and will provide the conceptual platform for the remainder of the essay. The second part of the essay describes four areas in which modern civil and criminal process address similar problems in starkly different ways—settlement, finality, discovery, and remedies for failed process. In each of these areas, we suggest, criminal process and civil process each has something to teach the other. Civil settlement practice might profitably borrow from the tradition on the criminal side that case dispositions need judicial approval; criminal practice might learn from the tradition on the civil side of involving judges in the negotiations leading up to settlement. The notorious complexity of double jeopardy law could be alleviated—and the oddity of some of its features made more apparent—by more frequent comparison with civil doctrines of former adjudication. Civil discovery might benefit from some of the limiting mechanisms of criminal discovery; criminal discovery might profitably emulate, to some degree, the symmetry of civil discovery. And lessons can be learned from comparing the law of 3 See, e.g., MIRJAN R. DAMAŠKA, THE FACES OF JUSTICE AND STATE AUTHORITY (1986); John H. Langbein, The Influence of Comparative Procedure in the United States, 43 AM J. COMP. L. 545 (1995); Máximo Langer, From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, 45 HARV. INT'L L.J. 1 (2004). 4 Langer, supra note 3, at 29-35
malpractice on the civil side with criminal doctrines regarding effective assistance of counsel The third and concluding part of the essay discusses two areas-evidence and professional ethics--in which civil and criminal rules are already more or less unified, and have been so for a relatively long time. In each of these fields, we argue, cross- fertilization between civil and criminal litigation has improved the rules applied in both sets of cases. Rules regarding expert testimony, for example, have benefited from the presumption that they should apply equally in civil and in criminal cases. The same is true of rules regarding the proper limits of zealous advocacy A final caveat is in order before we begin. This is a speculative essay, not a comprehensive program for reform. We think that comparing criminal and civil procedure can generate helpful insights and highlight overlooked possibilities, and we give examples of such insights and possibilities in the pages that follow. We do not claim that every possibility we identify deserves to be pursued, nor that we have identified all areas that might profitably be pursued. What we do claim, and what we hope our examples help to show, is that American civil and criminal process have things to teach each other . HOW WE GOT HERE A. When All Process Was Private In civil justice today the state sometimes seems to have no role to play; in criminal justice the citizen sometimes seems to have no role to play. One branch of law seems to have become the exclusive province of private disputes between peers. The other branch of law has become a state monopoly, and many aspects of procedural design reflect the tension between the desire to minimize crime and public expense at the same time and the special concerns that arise when the state deploys its power against the citizen The criminal-civil divide and the public-private divide both appear to be such fundamental features of the law that it is easy to forget for how short a time they have been conjoined in this manner. As recently as the nineteenth century--indeed, well into the twentieth century--civil and criminal proceedings were, in essence, alternative ways for aggrieved victims of wrongs to enlist the adjudicative machinery of the state in seeking redress For most of the nineteenth century, moreover, these two ancient systems of redress seemed to be converging rather than diverging. The mechanism was cro pollination, and the most important pollinators were lawyers. Lawyers themselves were an innovation that criminal practice borrowed from civil litigation. Opposing counsel were common in civil cases by the early eighteenth century. Then they were imported in stages into criminal trials, often via statutory and constitutional provisions that explicitly
4 malpractice on the civil side with criminal doctrines regarding effective assistance of counsel. The third and concluding part of the essay discusses two areas—evidence and professional ethics—in which civil and criminal rules are already more or less unified, and have been so for a relatively long time. In each of these fields, we argue, crossfertilization between civil and criminal litigation has improved the rules applied in both sets of cases. Rules regarding expert testimony, for example, have benefited from the presumption that they should apply equally in civil and in criminal cases. The same is true of rules regarding the proper limits of zealous advocacy. A final caveat is in order before we begin. This is a speculative essay, not a comprehensive program for reform. We think that comparing criminal and civil procedure can generate helpful insights and highlight overlooked possibilities, and we give examples of such insights and possibilities in the pages that follow. We do not claim that every possibility we identify deserves to be pursued, nor that we have identified all areas that might profitably be pursued. What we do claim, and what we hope our examples help to show, is that American civil and criminal process have things to teach each other. I. HOW WE GOT HERE A. When All Process Was Private In civil justice today the state sometimes seems to have no role to play; in criminal justice the citizen sometimes seems to have no role to play. One branch of law seems to have become the exclusive province of private disputes between peers. The other branch of law has become a state monopoly, and many aspects of procedural design reflect the tension between the desire to minimize crime and public expense at the same time and the special concerns that arise when the state deploys its power against the citizen. The criminal-civil divide and the public-private divide both appear to be such fundamental features of the law that it is easy to forget for how short a time they have been conjoined in this manner. As recently as the nineteenth century—indeed, well into the twentieth century—civil and criminal proceedings were, in essence, alternative ways for aggrieved victims of wrongs to enlist the adjudicative machinery of the state in seeking redress. For most of the nineteenth century, moreover, these two ancient systems of redress seemed to be converging rather than diverging. The mechanism was crosspollination, and the most important pollinators were lawyers. Lawyers themselves were an innovation that criminal practice borrowed from civil litigation. Opposing counsel were common in civil cases by the early eighteenth century. Then they were imported in stages into criminal trials, often via statutory and constitutional provisions that explicitly