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

56 Pages Posted: 19 Apr 2005  

David Alan Sklansky

Stanford University

Stephen C. Yeazell

University of California, Los Angeles (UCLA) - School of Law

Abstract

Civil and criminal procedure have parted ways - to their mutual detriment. Although civil and criminal processes grow from the same roots, practitioners, academics, rule-makers, and judges who create, critique, and operate the two systems usually behave as if the two systems had little to teach each other. This article seeks to explain the divergence of the two systems and to imagine what a dialogue between the two might sound like. We examine three situations in which systems resolve analogous problems in different ways - settlement and plea bargains, discovery, double jeopardy and former adjudication - and suggest some modest borrowings. We examine one area - remedies for basic procedural failures (i.e., legal malpractice, re-opened judgments, and habeas corpus) - in which the divergent approaches lay bare unexamined systemic preferences. Finally, we examine two areas - professional ethics and the law of evidence - in which the systems have remained largely unified, and explore the implications of that choice.

Keywords: Criminal and civil procedure, procedural failures, law of evidence, professional ethics

Suggested Citation

Sklansky, David Alan and Yeazell, Stephen C., Comparative Law Without Leaving Home: What Civil Procedure Can Teach Criminal Procedure, and Vice Versa. Georgetown Law Journal, Vol. 94, p. 683, 2006; UCLA School of Law Research Paper No. 05-9. Available at SSRN: https://ssrn.com/abstract=706601

David Alan Sklansky (Contact Author)

Stanford University ( email )

Stanford, CA 94305
United States

Stephen Yeazell

University of California, Los Angeles (UCLA) - School of Law ( email )

405 Hilgard Avenue
Box 951476 P.O. Box 951476
Los Angeles, CA 90095-1476
United States
310-825-8404 (Phone)
310-206-0158 (Fax)

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