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

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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.