First, despite everything, civil and criminal procedure still have a lot in common They are both, after all, systems of adjudicating- or otherwise resolving-disputes, and settling-or sidestepping-disagreements about historical facts. They both aim at fairness, accuracy, and efficiency-albeit in different mixtures. They share similar stages:pleading, discovery, trial or settlement, and appeal. They share the institution of the jury. They both have rules designed to protect the finality of judgments. Civil litigation, we will argue in this essay, has been essentially privatized, whereas criminal litigation is today more or less a government monopoly. But enough points of commonality remain to make systematic comparison appear worthwhile, even accepting the degree to which the criminal-civil divide has come to parallel the public-private divide Second, there are reasons to doubt the wisdom of replicating the public-private divide in the world of legal process. Many of the complaints raised about civil litigation today can be understood as objections to how far it has been privatized--how little regard the process seems to have for the broader public interest. Conversely, some of the loudest criticisms of criminal process over the past couple of decades have been about the way the system ignores the"private"interests of victims We certainly do not contend that civil and criminal cases have no important differences and should be treated the same. There are large differences between the two categories of cases, and comparisons between them, if drawn carelessly, can be dangerously misleading. We will pause occasionally in the following pages to point out some of those dangers. But we do think civil and criminal process can each learn things from the other--including a keener understanding of its own nature, and a healthy degree of skepticism about its own assumptions. In civil process today, important critiques are too often brushed aside with appeals to the notion that the public's only interest is in rough fairness between the parties and in moving the docket along. The states role as a guarantor of fair and accurate results has become vestigial. Meanwhile criminal process has taken on some of the less attractive features of government bureaucracies, including a pronounced institutional inertia and a resistance to the involvement of interested third parties S F.C. Milsom has argued that a special genius of the common law, one that partly offsets its untidiness and inconsistency, is the ability to provide points of comparison and alternative solutions to problems that present themselves in more than one setting. Civil and criminal procedure offer underappreciated opportunities for precisely this kind of cross-pollination. Misled by the sense that the two realms have entirely different goals, we have asked too infrequently whether they have anything to teach each other. We are more likely to contemplate borrowing practices from a foreig legal system than from the next courtroom There is nothing wrong with international comparison; we could use a good deal more of it. But we should not ignore the similar opportunities closer to home 2 See S F.C. Milsom, Reason in the Development of the Common Law, 81 LAW Q. REV. 49 (1965), reprinted in S.F.C. MILSOM, STUDIES IN THE HISTORY OF THE COMMON LAW 149(1985)2 First, despite everything, civil and criminal procedure still have a lot in common. They are both, after all, systems of adjudicating—or otherwise resolving—disputes, and settling—or sidestepping—disagreements about historical facts. They both aim at fairness, accuracy, and efficiency—albeit in different mixtures. They share similar stages: pleading, discovery, trial or settlement, and appeal. They share the institution of the jury. They both have rules designed to protect the finality of judgments. Civil litigation, we will argue in this essay, has been essentially privatized, whereas criminal litigation is today more or less a government monopoly. But enough points of commonality remain to make systematic comparison appear worthwhile, even accepting the degree to which the criminal-civil divide has come to parallel the public-private divide. Second, there are reasons to doubt the wisdom of replicating the public-private divide in the world of legal process. Many of the complaints raised about civil litigation today can be understood as objections to how far it has been privatized—how little regard the process seems to have for the broader public interest. Conversely, some of the loudest criticisms of criminal process over the past couple of decades have been about the way the system ignores the “private” interests of victims. We certainly do not contend that civil and criminal cases have no important differences and should be treated the same. There are large differences between the two categories of cases, and comparisons between them, if drawn carelessly, can be dangerously misleading. We will pause occasionally in the following pages to point out some of those dangers. But we do think civil and criminal process can each learn things from the other—including a keener understanding of its own nature, and a healthy degree of skepticism about its own assumptions. In civil process today, important critiques are too often brushed aside with appeals to the notion that the public’s only interest is in rough fairness between the parties and in moving the docket along. The state’s role as a guarantor of fair and accurate results has become vestigial. Meanwhile criminal process has taken on some of the less attractive features of government bureaucracies, including a pronounced institutional inertia and a resistance to the involvement of interested third parties. S.F.C. Milsom has argued that a special genius of the common law, one that partly offsets its untidiness and inconsistency, is the ability to provide points of comparison and alternative solutions to problems that present themselves in more than one setting.2 Civil and criminal procedure offer underappreciated opportunities for precisely this kind of cross-pollination. Misled by the sense that the two realms have entirely different goals, we have asked too infrequently whether they have anything to teach each other. We are more likely to contemplate borrowing practices from a foreign legal system than from the next courtroom over. There is nothing wrong with international comparison; we could use a good deal more of it. But we should not ignore the similar opportunities closer to home. 2 See S.F.C. Milsom, Reason in the Development of the Common Law, 81 LAW Q. REV. 496 (1965), reprinted in S.F.C. MILSOM, STUDIES IN THE HISTORY OF THE COMMON LAW 149 (1985)