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Open Access. Powered by Scholars. Published by Universities.®

2017

Civil Procedure

Fordham Law Review

Criminal law; criminal procedure; civil procedure; litigation; federal rules

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Full-Text Articles in Law

Why Civil And Criminal Procedure Are So Different: A Forgotten History, Ion Meyn Nov 2017

Why Civil And Criminal Procedure Are So Different: A Forgotten History, Ion Meyn

Fordham Law Review

Much has been written about the origins of civil procedure. Yet little is known about the origins of criminal procedure, even though it governs how millions of cases in federal and state courts are litigated each year. This Article’s examination of criminal procedure’s origin story questions the prevailing notion that civil and criminal procedure require different treatment. The Article’s starting point is the first draft of the Federal Rules of Criminal Procedure—confidential in 1941 and since forgotten. The draft reveals that reformers of criminal procedure turned to the new rules of civil procedure for guidance. The contents of this draft …