在一国之内研究比较法.pdf

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 work Electronic Paper Collection:
/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 parative 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 parative 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 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 ci