allowed for counsel to appear in criminal prosecutions"as in civil cases. By the nineteenth century lawyers were common in criminal as well as civil cases, and often the same lawyers appeared in both kinds of proceedings. Once lawyers had feet on both ides of the criminal-civil divide, they began to carry ideas back and forth between the two realms, and the divide started to shrink. Take, for example, the aggressive use of objections to shape and limit testimony--the foundation of the modern law of evidence This practice appears to have arisen first in criminal trials and then to have been imported into civil cases by lawyers who appeared on both sides of the docket. Because the practice crossed the procedural divide so quickly, modern evidence law, when it began to solidify in the late nineteenth century, drew few distinctions between civil and crimin cases-a fact to which we will return later in this essay. Today, of course, the civil bar and the criminal bar are largely separate, and the great majority of criminal lawyers are employed by the government---regardless of which side they represent. In the nineteenth century, by contrast, the private bar was more unified. and it handled the bulk of litigation, both civil and criminal. Criminal prosecution, let alone criminal defense, had not yet become a government monopoly Before the Civil War, in fact, criminal prosecution was not even a government specialty The system relied on private prosecution, with state officials involved only in a minority of cases. So overwhelming was the case load for such officials that citizens with an interest in seeing justice done often hired private prosecutors to marshal evidence and to prosecute the case. Understandably, such citizens were often the victims, or family members of the victims, of the crimes alleged. The real or suspected motive of vengeance provided arguments for the defendant, and, more occasionally, criticism from appellate courts. But private prosecution flourished well into the twentieth century, in large part because few public prosecutors were funded and staffed well enough to bring charges in the vast run of cases This practice meant that for many citizens the functions of criminal and civil justice were barely distinguishable. Both served as means for citizens to pursue Eben Moglen, Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege Against Self-Incrimination, 92 MICH. L REV. 1086, 1 126(1994)(quoting N.Y. CONST (1777)) Stephan Landsman, The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England, 75 CORNELL L REV. 497(1990), John H Langbein, The Criminal Trial Before Layers, 45 U CHI. L REV. 263(1978); John H. Langbein, Historical Foundations of the Law of Evidence: A View from the Ryder Sources, 96 COLUM. L REv. 1168(1996)[hereinafter Langbein, Historical Foundations of the Law of Evidence 7 See T P. Gallanis, The Rise of Modern Evidence Law, 84 IOWA L. REV. 499(1999). It is not entirely clear why heavy reliance on evidentiary objections to testimony appeared first in criminal trials Langbein speculates it had to do with the fact criminal trials involved more witnesses and fewer documents See Langbein, Historical Foundations of the law of Evidence, supra note 6, at 1201-02. Gallanis proposes instead that lawyers in criminal cases were forced to turn their attention to objections because"prisoners counsel was allowed to do little more than cross-examine the victim and the other witnesses supporting the charge", he could not, in particular, address the jury. See Gallanis, supra, at 545 8 Robert M. Ireland, Privately Funded Prosecution of Crime in Nineteenth-Century United State 9 AM J LEGAL HIST. 43(1995)
5 allowed for counsel to appear in criminal prosecutions “as in civil cases.”5 By the nineteenth century lawyers were common in criminal as well as civil cases, and often the same lawyers appeared in both kinds of proceedings.6 Once lawyers had feet on both sides of the criminal-civil divide, they began to carry ideas back and forth between the two realms, and the divide started to shrink. Take, for example, the aggressive use of objections to shape and limit testimony—the foundation of the modern law of evidence. This practice appears to have arisen first in criminal trials and then to have been imported into civil cases by lawyers who appeared on both sides of the docket.7 Because the practice crossed the procedural divide so quickly, modern evidence law, when it began to solidify in the late nineteenth century, drew few distinctions between civil and criminal cases—a fact to which we will return later in this essay. Today, of course, the civil bar and the criminal bar are largely separate, and the great majority of criminal lawyers are employed by the government—regardless of which side they represent. In the nineteenth century, by contrast, the private bar was more unified, and it handled the bulk of litigation, both civil and criminal. Criminal prosecution, let alone criminal defense, had not yet become a government monopoly. Before the Civil War, in fact, criminal prosecution was not even a government specialty. The system relied on private prosecution, with state officials involved only in a minority of cases. So overwhelming was the case load for such officials that citizens with an interest in seeing justice done often hired private prosecutors to marshal evidence and to prosecute the case. Understandably, such citizens were often the victims, or family members of the victims, of the crimes alleged. The real or suspected motive of vengeance provided arguments for the defendant, and, more occasionally, criticism from appellate courts. But private prosecution flourished well into the twentieth century, in large part because few public prosecutors were funded and staffed well enough to bring charges in the vast run of cases.8 This practice meant that for many citizens the functions of criminal and civil justice were barely distinguishable. Both served as means for citizens to pursue 5 Eben Moglen, Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege Against Self-Incrimination, 92 MICH. L. REV. 1086, 1126 (1994) (quoting N.Y. CONST. (1777)). 6 Stephan Landsman, The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England, 75 CORNELL L. REV. 497 (1990); John H. Langbein, The Criminal Trial Before Lawyers, 45 U. CHI. L. REV. 263 (1978); John H. Langbein, Historical Foundations of the Law of Evidence: A View from the Ryder Sources, 96 COLUM. L. REV. 1168 (1996) [hereinafter Langbein, Historical Foundations of the Law of Evidence]. 7 See T.P. Gallanis, The Rise of Modern Evidence Law, 84 IOWA L. REV. 499 (1999). It is not entirely clear why heavy reliance on evidentiary objections to testimony appeared first in criminal trials. Langbein speculates it had to do with the fact criminal trials involved more witnesses and fewer documents. See Langbein, Historical Foundations of the Law of Evidence, supra note 6, at 1201-02. Gallanis proposes instead that lawyers in criminal cases were forced to turn their attention to objections because “prisoner’s counsel was allowed to do little more than cross-examine the victim and the other witnesses supporting the charge”; he could not, in particular, address the jury. See Gallanis, supra, at 545. 8 Robert M. Ireland, Privately Funded Prosecution of Crime in Nineteenth-Century United States, 39 AM. J. LEGAL HIST. 43 (1995)
grievances about the behavior of others. In both processes the vigor with which the complaints were pursued and the timing and means by which the disputes were terminated lay in the hands of instigators. Allen Steinberg's study of private prosecution in Philadelphia before the Civil War makes the linkage clear During the first half of the nineteenth century ... an elaborate system of criminal justice typified by private prosecution and dominated by the citys alderman became entrenched in Philadelphia L enforcement became the responsibility of a community's residents, and the mechanism they used was the one remaining from the eighteenth-century town-the private criminal suit instituted in the office of the neighborhood alderman.. Aldermen had no power to implement the final disposition of these cases, but the decision about how far along the criminal justice process a case would go rested primarily with these officials and the private parties There was little role for a public prosecutor in this system of law enforcement The state had little direct interest in it, and when the state was involved, no major friction existed between the citizenry and the alderman."Although aldermen were officers of the state, their real dependence was on the private citizens who provided their fees. In such a regime, citizens and lawyers alike might perceive relatively little distinction between instituting civil and criminal litigation: in either, the complainant would initiate the case, would pursue it, and would end it when and if he reached a satisfactory settlement with his adversary. So deeply ingrained were these assumptions that even at mid-century people objected to the public prosecutor's playing any role in prosecution, on the grounds that to do so would be to favor one citizen(the complain witness, as we now might call her)over anoth Understanding this situation gives us more insight into an institution that now seems questionably useful, the grand jury. Today everyone seems to agree that a minimally competent prosecutor can get a grand jury to "indict a ham sandwich. Not Allen Steinberg, From Private Prosecution to Plea Bargaining: Criminal Prosecution, the District Attorney, and American Legal History, 30 CrIME DELINQ 568, 572-73(1984) e,e.g, David Margolick, Law Professor to Administer Courts in State, N.Y. TIMES, Feb. I 1985, at B2 (quoting Sol Wachtler). Remarkably, even the United States Department of Justice now seems to have endorsed the view that the grand jury serves as little more than a rubber stamp. The endorsement ame as part of the department's defense of new powers granted to the FBI in the wake of September 11 2001. Among those powers is the ability to obtain court orders requiring the production of documents based solely on an application from the FBI stating that"the records concerned are sought for an authorized investigation.. to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities. " USA PATRIOT Act of 2001 s 215, 50 U.SC.$ 1861(2004). In defending this provision, the Justice Department has argued that since the orders must be"approved by a federal judge, "they are"more difficult to obtain than ordinary grand-jury subpoenas, which can require the production of the very same records but without prior judicial approval
6 grievances about the behavior of others. In both processes the vigor with which the complaints were pursued and the timing and means by which the disputes were terminated lay in the hands of instigators. Allen Steinberg’s study of private prosecution in Philadelphia before the Civil War makes the linkage clear: During the first half of the nineteenth century . . . an elaborate system of criminal justice typified by private prosecution and dominated by the city’s alderman became entrenched in Philadelphia. . . . [L]aw enforcement became the responsibility of a community’s residents, and the mechanism they used was the one remaining from the eighteenth-century town—the private criminal suit instituted in the office of the neighborhood alderman. . . . Aldermen had no power to implement the final disposition of these cases, but the decision about how far along the criminal justice process a case would go rested primarily with these officials and the private parties. . . .9 “There was little role for a public prosecutor in this system of law enforcement. The state had little direct interest in it, and when the state was involved,” no major friction existed between the citizenry and the alderman. “Although aldermen were officers of the state, their real dependence was on the private citizens who provided their fees.”10 In such a regime, citizens and lawyers alike might perceive relatively little distinction between instituting civil and criminal litigation: in either, the complainant would initiate the case, would pursue it, and would end it when and if he reached a satisfactory settlement with his adversary. So deeply ingrained were these assumptions that even at mid-century people objected to the public prosecutor’s playing any role in prosecution, on the grounds that to do so would be to favor one citizen (the complaining witness, as we now might call her) over another.11 Understanding this situation gives us more insight into an institution that now seems questionably useful, the grand jury. Today everyone seems to agree that a minimally competent prosecutor can get a grand jury to “indict a ham sandwich.”12 Not 9 Allen Steinberg, From Private Prosecution to Plea Bargaining: Criminal Prosecution, the District Attorney, and American Legal History, 30 CRIME & DELINQ. 568, 572-73 (1984). 10 See id. at 575. 11 See id. at 577. 12 See, e.g., David Margolick, Law Professor to Administer Courts in State, N.Y. TIMES, Feb. 1, 1985, at B2 (quoting Sol Wachtler). Remarkably, even the United States Department of Justice now seems to have endorsed the view that the grand jury serves as little more than a rubber stamp. The endorsement came as part of the Department's defense of new powers granted to the FBI in the wake of September 11, 2001. Among those powers is the ability to obtain court orders requiring the production of documents based solely on an application from the FBI stating that "the records concerned are sought for an authorized investigation … to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities." USA PATRIOT Act of 2001 § 215, 50 U.S.C. § 1861 (2004). In defending this provision, the Justice Department has argued that since the orders must be "approved by a federal judge," they are "more difficult to obtain than ordinary grand-jury subpoenas, which can require the production of the very same records but without prior judicial approval
so in the nineteenth century. Then, as in Blackstones day, the grand jury played a substantial role, receiving the"suit of any private prosecutor"and deciding whether it warranted further proceedings he grand jury screened the trivial or the unfounded complaints from those that had substance. Today, the grand jury's role makes little sense because we assume that a state official has already screened cases for merit and substance. In a world of private prosecution, the function was both sensible and essential: in the two decades bracketing the Civil War, Philadelphia grand juries dismissed almost two-thirds of all charges brought before them, a statistic unthinkable y We live in a world so different it is hard to capture the operating assumptions of a century ago. The bureaucratization of criminal justice created executive officers who now do the work of apprehension, investigation, and screening that once took plac principally within the judicial system. Apprehension and investigation are now the jobs of professional law enforcement-a sector that did not exist before the middle of the nineteenth century and that became fully established only in the twentieth century. Screening is the work of law enforcement and professional prosecutors Even criminal defense is now a responsibility largely assumed by the state-albeit ith varying levels of zeal. By 1963, when the Supreme Court ruled that states were constitutionally obligated to give lawyers to indigent felony defendants, most states were Iready doing so: the effect of Gideon was to require the small number of holdouts to meet the by-then common practice. Because the vast majority of criminal defendants are indigent--the figure is over 80% in state felony cases-in most criminal trials today all of the participants other than the defendant, the jury, and some of the witnesses are on the government payroll. The question being debated, moreover, is whether the government should forcibly house and employ, at prison wages, the defendant as well. In a powerful sense the state now"owns" the entire apparatus of criminal investigation and adjudication. The state owns it because the state pays for it. In twenty-first-century Los James Comey, Deputy Attorney General, Letter to the Editor, Rights and the Patriot Act, N.Y. TIMES, Apr 28.2004.atA20 34 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND*300 See Steinberg, supra note 9, at 574. As we discuss later in this essay, the grand jury today does play a role largely unrelated to screening: it allows prosecutors to question witnesses under oath before charges are brought. It therefore serves as a partial substitute for the general unavailability of depositions in criminal cases. But it provides this substitute only for prosecutors, and without the check provided by the presence of opposing counsel during questioning. Once the grand jury is understood as essentially a discovery device, not a screening device, these stark differences from the rules governing depositions the civil side become harder to justify. See notes 94-108 and accompanying text, infr See, e.g., David A Sklansky, The Private Police, 46 UCLA L REV. 1165, 1193-1217(1999) Gideon v. Wainwright, 372 U.S. 335(1963) See CARoLINE WOLF HARLoW, U.S. DEPT OF JUSTICE, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT: DEFENSE COUNSEL IN CRIMINAL CASES 1(2000); STEVEN K. SMITH CAROl J. DEFRANCEs, U.s DEPT OF JUSTICE, BUREAU OF JUSTICE STATISTICS SELECTED FINDINGS: INDIGENT DEFENSE 1, 4(1996
7 so in the nineteenth century. Then, as in Blackstone’s day, the grand jury played a substantial role, receiving the “suit of any private prosecutor” and deciding whether it warranted further proceedings.13 The grand jury screened the trivial or the unfounded complaints from those that had substance. Today, the grand jury’s role makes little sense because we assume that a state official has already screened cases for merit and substance. In a world of private prosecution, the function was both sensible and essential: in the two decades bracketing the Civil War, Philadelphia grand juries dismissed almost two-thirds of all charges brought before them, a statistic unthinkable today.14 We live in a world so different it is hard to capture the operating assumptions of a century ago. The bureaucratization of criminal justice created executive officers who now do the work of apprehension, investigation, and screening that once took place principally within the judicial system. Apprehension and investigation are now the jobs of professional law enforcement—a sector that did not exist before the middle of the nineteenth century and that became fully established only in the twentieth century.15 Screening is the work of law enforcement and professional prosecutors. Even criminal defense is now a responsibility largely assumed by the state—albeit with varying levels of zeal. By 1963, when the Supreme Court ruled that states were constitutionally obligated to give lawyers to indigent felony defendants, most states were already doing so: the effect of Gideon was to require the small number of holdouts to meet the by-then common practice.16 Because the vast majority of criminal defendants are indigent—the figure is over 80% in state felony cases17—in most criminal trials today all of the participants other than the defendant, the jury, and some of the witnesses are on the government payroll. The question being debated, moreover, is whether the government should forcibly house and employ, at prison wages, the defendant as well. In a powerful sense the state now “owns” the entire apparatus of criminal investigation and adjudication. The state owns it because the state pays for it. In twenty-first-century Los James Comey, Deputy Attorney General, Letter to the Editor, Rights and the Patriot Act, N.Y. TIMES, Apr. 28, 2004, at A20. 13 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *300. 14 See Steinberg, supra note 9, at 574. As we discuss later in this essay, the grand jury today does play a role largely unrelated to screening: it allows prosecutors to question witnesses under oath before charges are brought. It therefore serves as a partial substitute for the general unavailability of depositions in criminal cases. But it provides this substitute only for prosecutors, and without the check provided by the presence of opposing counsel during questioning. Once the grand jury is understood as essentially a discovery device, not a screening device, these stark differences from the rules governing depositions on the civil side become harder to justify. See notes 94-108 and accompanying text, infra. 15 See, e.g., David A. Sklansky, The Private Police, 46 UCLA L. REV. 1165, 1193-1217 (1999). 16 Gideon v. Wainwright, 372 U.S. 335 (1963). 17 See CAROLINE WOLF HARLOW, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT: DEFENSE COUNSEL IN CRIMINAL CASES 1 (2000); STEVEN K. SMITH & CAROL J. DEFRANCES, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS SELECTED FINDINGS: INDIGENT DEFENSE 1, 4 (1996)
Angeles, for example, roughly a quarter of the city and county budgets is spent on criminal process-excluding the courts 18 B. Police as a public Imvestment This story of private enterprise and public reaction had one important exception in the nineteenth century, an exception that prepared the way for our existing dual systems The emergence of public police forces helped shape the conditions for modern legal practice--on the civil as well as on the criminal side In a system that depended on evidence of disputed facts, any mechanism that collected these facts and made it easier for the parties to present them in court was important. In the latter nineteenth century English and American societies acquired such a system--professional police--though the chief motivation lay not in the desire to assist courts but in the wish to keep public order in growing cities. This is not the place for a history of policing. But the growth of professional law enforcement explains part of the divergence of the civil and criminal systems Well into the nineteenth century, in both England and America, the apprehension of offenders and the prosecution of criminal cases was a private affair, in which government participated only by offering rewards. Modern police departments, which date from the 1829 creation of the London Metropolitan Police, specialized at first almost entirely in patrol. They replaced the medieval institutions of the constable, the night watch, and the hue and cry, but they left the business of detection to the private sector- initially, to the informal network of informers and"thief-takers" inherited from the 1700s and later, particularly in America, to the private detective industry pioneered by alar Pinkerton o. gs There were natural synergies, though, between patrol work and detection, and by nineteenth century urban police forces on both sides of the Atlantic were developing significant sidelines in investigation. The detective branches of public police artments greatly expanded in the early twentieth century, and they began to absorb the chniques and ambitions of companies like the Pinkerton agency-a process accelerated by the newly-formed Federal Bureau of Investigation, both directly and through the example that it set. Spurred in part by the FBI, American law enforcement at all levels of government gradually came to see its most important mission as controlling crime, not CITY OF LOS ANGELES 2002-03 BUDGET 16 (25% for"crime control"-excluding prosecution public protection"including offices of district attorney, public defender, sheriff, and coroner, as wey or which is a county responsibility); COUNTY OF LOS ANGELES ANNUAL REPORT 2002-03, at 16-25(20%f some firefighting services) See, e.g., Sklansky, supra note 15, at 1195-1217. Charles Dickens gave us a memorable emnant of this world in Bleak House, where one of the plot lines revolves around the work of a privately etained detective whose devotion to truth-seeking brings down the wife of the aristocrat who retained him 8
8 Angeles, for example, roughly a quarter of the city and county budgets is spent on criminal process—excluding the courts. 18 B. Police as a Public Investment This story of private enterprise and public reaction had one important exception in the nineteenth century, an exception that prepared the way for our existing dual systems. The emergence of public police forces helped shape the conditions for modern legal practice—on the civil as well as on the criminal side. In a system that depended on evidence of disputed facts, any mechanism that collected these facts and made it easier for the parties to present them in court was important. In the latter nineteenth century English and American societies acquired such a system—professional police—though the chief motivation lay not in the desire to assist courts but in the wish to keep public order in growing cities. This is not the place for a history of policing. But the growth of professional law enforcement explains part of the divergence of the civil and criminal systems. Well into the nineteenth century, in both England and America, the apprehension of offenders and the prosecution of criminal cases was a private affair, in which government participated only by offering rewards. Modern police departments, which date from the 1829 creation of the London Metropolitan Police, specialized at first almost entirely in patrol. They replaced the medieval institutions of the constable, the night watch, and the hue and cry, but they left the business of detection to the private sector— initially, to the informal network of informers and "thief-takers" inherited from the 1700s, and later, particularly in America, to the private detective industry pioneered by Alan Pinkerton.19 There were natural synergies, though, between patrol work and detection, and by the late nineteenth century urban police forces on both sides of the Atlantic were developing significant sidelines in investigation. The detective branches of public police departments greatly expanded in the early twentieth century, and they began to absorb the techniques and ambitions of companies like the Pinkerton agency—a process accelerated by the newly-formed Federal Bureau of Investigation, both directly and through the example that it set. Spurred in part by the FBI, American law enforcement at all levels of government gradually came to see its most important mission as controlling crime, not 18 CITY OF LOS ANGELES 2002-03 BUDGET 16 (25% for "crime control"—excluding prosecution, which is a county responsibility); COUNTY OF LOS ANGELES ANNUAL REPORT 2002-03, at 16-25 (20% for "public protection"—including offices of district attorney, public defender, sheriff, and coroner, as well as some firefighting services). 19 See, e.g., Sklansky, supra note 15, at 1195-1217. Charles Dickens gave us a memorable remnant of this world in Bleak House, where one of the plot lines revolves around the work of a privately retained detective, whose devotion to truth-seeking brings down the wife of the aristocrat who retained him
simply maintaining order. And controlling crime meant not just catching criminals, bi convicting them in court By the 1920s and 1930S, the police still spent most of their time keeping order Even when that task required an arrest(which it usually did not), and when the arrest led to a court proceeding (which was also not the norm), little evidence gathering was required: the officer's testimony would usually suffice. But in those cases that did require investigation and gathering of evidence, the police were available to supply and supplement the efforts of professional prosecutors. Moreover, whether they operated with or without warrants, the police offered an American version of compelled evidence gathering: they could search records, interrogate unwilling witnesses, collect physical evidence, and compel access to real and personal property. The fruits of these efforts fed the prosecutorial arm, which could then present the evidence thus gathered in court, in support of the charges filed. If we add to this system the important additional ingredients of constitutional constraints on evidence-gathering and public support of the defense bar, it is still the system we use today C. Law Reform and the Parting of the Ways If the nineteenth century marked a period of innovation in criminal process the twentieth century saw enormous change on the civil side. That change affected both formal procedural rules and the organization of the bar. Together, they reshaped civil practice over the course of a century, making it look almost unrecognizable either from the perspective of the civil bar at the start of the twentieth century or from the vantage point of the criminal practitioner at the start of the twenty-first While criminal process was becoming a branch of government law, civil practice was heading in the opposite direction, toward entrepreneurship, initiative, and an understanding of law as a business. Robert gordon has told the story of the early growth of the law firm, a practice development paralleling the growth of these firms'business clients. As interesting a story, at the other end of the private- bar practice spectrum, has been the growth of the plaintiffs' firm. Long a despised poor relation of the Wall Street practice, the plaintiffs' firm has emerged as a successful business in the years following the Second World War. Taking advantage both of the contingent fee and of deregulation of advertising for professional services, this part of the bar created small See, e.g., Sklansky, supra note 14, at 1216-17 Robert w. Gordon, The ldeal and the Actual in the Lan: Fantasies and Practices of New York City Lawyers, 1870-1910, in THE NEW HIGH PRIESTS: LAWYERS IN POST-CIVIL WAR AMERICA 51, 59-62 (Gerard w. Gawalt ed, 1984) See JEROLD S. AUERBACH, UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA 40-50(1976): JEROME E. CARLIN, LAWYERS ON THEIR OWN: A STUDY OF INDIVIDUAL PRACTITIONERS IN CHICAGO (1962) Stephen C. Yeazell, Refinancing Civil Litigation, 51 DEPAUL L. REV. 183(2001) U.S.o a See bates v State Bar of Arizona, 433 U.S. 557(1980), Shapero v. Kentucky Bar Assoc,486
9 simply maintaining order. And controlling crime meant not just catching criminals, but convicting them in court.20 By the 1920s and 1930s, the police still spent most of their time keeping order. Even when that task required an arrest (which it usually did not), and when the arrest led to a court proceeding (which was also not the norm), little evidence gathering was required: the officer’s testimony would usually suffice. But in those cases that did require investigation and gathering of evidence, the police were available to supply and supplement the efforts of professional prosecutors. Moreover, whether they operated with or without warrants, the police offered an American version of compelled evidence gathering: they could search records, interrogate unwilling witnesses, collect physical evidence, and compel access to real and personal property. The fruits of these efforts fed the prosecutorial arm, which could then present the evidence thus gathered in court, in support of the charges filed. If we add to this system the important additional ingredients of constitutional constraints on evidence-gathering and public support of the defense bar, it is still the system we use today. C. Law Reform and the Parting of the Ways If the nineteenth century marked a period of innovation in criminal process, the twentieth century saw enormous change on the civil side. That change affected both formal procedural rules and the organization of the bar. Together, they reshaped civil practice over the course of a century, making it look almost unrecognizable either from the perspective of the civil bar at the start of the twentieth century or from the vantage point of the criminal practitioner at the start of the twenty-first. While criminal process was becoming a branch of government law, civil practice was heading in the opposite direction, toward entrepreneurship, initiative, and an understanding of law as a business. Robert Gordon has told the story of the early growth of the law firm, a practice development paralleling the growth of these firms’ business clients.21 As interesting a story, at the other end of the private-bar practice spectrum, has been the growth of the “plaintiffs’ firm.” Long a despised poor relation of the Wall Street practice,22 the plaintiffs’ firm has emerged as a successful business in the years following the Second World War.23 Taking advantage both of the contingent fee and of deregulation of advertising for professional services,24 this part of the bar created small 20 See, e.g., Sklansky, supra note 14, at 1216-17. 21 Robert W. Gordon, The Ideal and the Actual in the Law: Fantasies and Practices of New York City Lawyers, 1870-1910, in THE NEW HIGH PRIESTS: LAWYERS IN POST-CIVIL WAR AMERICA 51, 59-62 (Gerard W. Gawalt ed., 1984). 22 See JEROLD S. AUERBACH, UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA 40-50 (1976); JEROME E. CARLIN, LAWYERS ON THEIR OWN: A STUDY OF INDIVIDUAL PRACTITIONERS IN CHICAGO (1962). 23 Stephen C. Yeazell, Refinancing Civil Litigation, 51 DEPAUL L. REV. 183 (2001). 24 See Bates v. State Bar of Arizona, 433 U.S. 557 (1980); Shapero v. Kentucky Bar Assoc., 486 U.S. 466 (1988)