Georgetown Law Journal Publishes Article on Comparative Civil and Criminal Procedure

Georgetown Law Journal has just published an article by Prof. David A. Sklansky and Prof. Stephen C. Yeazell entitled Compatative Law Without Leaving Home: What Civil Procedure Can Teach Criminal Procedure, and Vice Versa, 94 Geo. L.J. 683 (2006), which discusses the need for and benefits of comparative work contrasting civil and criminal procedure within the American judicial system. Here’s an excerpt from the introduction:

This is a plea for comparative work in civil and criminal procedure. . . . We argue [. . . for . . .] 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.

. . .

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. The first Part of this Article provides 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 Article.

The second Part of the Article 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 malpractice on the civil side with criminal doctrines regarding effective assistance of counsel.

The third and concluding Part of the Article 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 Article, 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.