THE HAVES OF PROCEDURE.

• Author: Meyn, Ion

TABLE OF CONTENTS INTRODUCTION 1768 I. THE "HAVES" OF LITIGATION AND THEIR PREFERENCES 1774 II. THE STATE OF CIVIL AND CRIMINAL PROCEDURE 1780 A. How "Civil Haves"Fare 1782 B. How "Criminal Haves"Fare 1793 C. Diverging Trajectories 1803 III. How THE PROCEDURAL DIVIDE MAKES POSSIBLE CONTRADICTORY RULES: A CASE STUDY 1804 IV. WHAT HAPPENS WHEN "HAVES" HAVE IT OUT 1812 V. IF THE "HAVES" SHOULD COMPETE IN A UNIFIED FORUM 1817 CONCLUSION 1823 INTRODUCTION

The schism that occurred between civil and criminal procedure had significant repercussions for the future of litigation in the United States. For centuries, civil and criminal procedure shared a deep parallelism at common law. (1) During federal reform to procedure in the 1930s and 1940s, reformers initially sought to preserve this uniformity. (2) The first draft of the Federal Rules of Criminal Procedure in large part imported the newly instituted civil rules. (3) Behind closed doors, the full Advisory Committee--its membership dominated by prosecutors who recognized the power-flattening potential of the civil rules--rejected this proposal. (4) The Committee instead retained features of common law procedure that preserved prosecutorial advantage. (5) From this fateful moment, procedure governing civil and criminal disputes took divergent paths. (6) This divide effectively insulated "criminal haves" (prosecutors) and "civil haves" (institutional players) from each other's influence, having a profound influence on the development of criminal and civil procedure in the United States.

Who are the "haves"? Marc Galanter gave the term robust meaning when he proposed a framework to understand how the "haves" use litigation to exert influence over the development of the law. (7) A "have," compared to a "have-not," enjoys superior access to resources and to the store of information critical to assessing liability, harm, and mitigation. (8) A "have" gains expertise within the constellation of rules that govern its world. (9) A "have" tends to be a repeat player, gaining familiarity with the forum for resolving disputes and cultivating relationships with decision makers and elite practitioners. (10) Though "haves" seek to minimize loss and maximize gain in any individual case, they may accept a loss to wait for more favorable conditions before advocating for doctrinal shifts in the law. (11) In contrast, "have-nots" have comparatively little access to information and resources. (12) "Have-nots" have few contacts with a forum; yet, if they are repeat players (such as criminal recidivists), decision makers hold them in low esteem. (13) "Have-nots" have everything to gain or to lose in any single case, as each case is the litigant's "one shot." (14) This desperation will often benefit the "have" as the "have-not" goes for broke at an inopportune time, resulting in suboptimal interpretations of the law for subsequent "have-nots" facing similar circumstances. (15)

Writing in the early 1970s, Galanter sought to temper a growing optimism that litigation held redistributive promise as courtroom victories and legislation in the 1960s disrupted the status quo. (16) As litigation was increasingly viewed as a vehicle to achieve social justice, (17) Galanter provided a counter prediction. (18) Absent a sustained political check on their designs, the "haves" would secure interpretations of law responsive to their preferences on account of their superior resources, access to information, and ability to forge a long-term litigation strategy. (19) Galanter predicted the long arc of litigation would bend to the will of the "have." (20) Galanter's theory, however, focuses on the development of the substantive law and is premised on the interests of the "haves" being aligned. (21) But in the world of procedure, the preferences of the "criminal haves" and "civil haves" do not align. In the project to secure procedural preferences, the "haves" are not stronger together. Quite the opposite. They are foes.

Who are the "haves" of litigation? This Article defines the "criminal haves" as state and federal prosecutors that bring cases against indigent criminal defendants ("criminal have-nots"). Though this definition excludes some defendants (such as white-collar defendants) and yet includes a broad swath of cases (from misdemeanors to murders), this definition captures the relationship that influences prosecutors in seeking rules that apply to all criminal cases. In this Article, "civil haves" are artificial persons, such as corporations and government entities, sued by real individuals who allege civil rights, consumer, and tort claims ("civil have-nots"). (22) Although this definition excludes certain relationships (such as "civil haves" suing "civil haves") and includes different types of disputes (from slip-and-falls to antitrust), the definition seeks to identify the relationship that influences the "civil haves" in determining what procedural rules should apply to all civil cases.

These particular relationships give rise to the general preferences of the "haves." As the party that always initiates a case, a "criminal have" seeks relaxed pleading standards that permit easy access to the forum. (23) In contrast, "civil haves" seek demanding pleading standards that hinder an individual plaintiff's ability to bring suit. (24) As to discovery, prosecutors resist formal procedures and seek to exercise unfettered discretion to maximize leverage in achieving pretrial objectives. (25) In contrast, "civil haves," at times in need of information, seek to preserve core features of formal discovery. (26)

Despite the potential clash of these preferences, the "haves" do not meet on the field. As they attempt to shape procedure, they are free from each other's influence. This is a modern development. (27) Under common law procedure, the "haves" shared deep procedural ties; for example, pleading standards for civil actions were "applicable to an indictment" and "where the criminal law [was] silent as to the form of an indictment," a litigant looked to "pleading in civil actions." (28) During the federal reform of procedure in the 1930s and 1940s, as substance was purged from procedure, the potential for a unified forum became possible. (29) Indeed, the initial proposal by reformers was to tie the two sets of rules together. (30) But an alternative vision prevailed, and separate procedural territories emerged. (31) As a result, "civil haves" and "criminal haves" became insulated from each other, governed by different procedural rules. (32)

It is this procedural divide that is the heart of this Article: How has separating the "haves" of litigation influenced the development of procedure? A rich literature provides insights into the development of civil procedure; the historical studies of Stephen Subrin, the political lens of Judith Resnik, and the empirical contributions of Stephen Burbank and Sean Farhang, to name a few. (33) The inquiry into the historical and political hydraulics of rule formation in criminal procedure, however, is comparatively wanting. This Article seeks to reveal how the procedural divide has influenced the development of rules in each forum. This Article contends that the war avoided between the "haves" of civil and criminal litigation has had a significant impact on the development of procedure. Litigating within separate territories, "civil haves" and "criminal haves" exert conflicting preferences free of interference from each other. Absent moments of political or judicial intervention, the procedural changes in each forum respond to preferences of each set of "haves." This Article considers how the creation of a unified

forum--subject to civil rules as originally proposed--would require "haves" to contend with each other's competing preferences and pull other decision makers, such as judges, into the crosscurrents.

This Article is also situated within scholarship that confronts the justification for the procedural divide. (34) An underlying question addressed is whether criminal disputes should be subject to the rules of civil procedure. The first draft of Federal Rules of Criminal Procedure, proposed in 1941, answered this question in the affirmative and followed "as closely as possible in organization, in numbering and in substance the Federal Rules of Civil Procedure." (35) Viewing procedure as transsubstantive, these reformers proposed a rule that tied the meaning of a criminal rule to the corresponding civil rule. (36) The full committee considering this proposal, however, ultimately rejected this unification effort. (37)

Among criminal procedure scholars and practitioners, the debate has increased in intensity over the justification for the divide. Supporters of the status quo contend that prosecutors in their role as ministers of justice should be trusted to exercise appropriate discretion in managing disputes, and that defendants would abuse formal discovery to delay proceedings, intimidate witnesses, and traumatize victims. (38) Those partial to some degree of procedural unification contend that increased factual contestation in criminal disputes is necessary to obtain legitimate outcomes. (39) For the purposes of this Article, it is sufficient that there is a robust debate over whether this segregation is justified. The focus of this Article is the significance of the division: to consider whether the procedural divide has played a role in influencing the development of procedure, and if so, to what degree.

In Part I, the Article defines a "civil have" and a "criminal have," and explores how each set of "haves," on account of their unique relationships to their respective "have-nots," results in opposing preferences at key procedural stages: pleading and discovery. Part II surveys the development of civil and criminal procedure from the moment the "haves" of litigation were segregated in the early 1940s. This study of historical trends reveals the...