California Law Review
In the 1970s and early 1980s, legal academics hotly debated the possibility of basing American law reforms on continental procedures, but this voluminous literature produced few conclusions and virtually no sustained research and reform efforts. In this Article, Professor Frase argues that this stalemate was largely due to the fact that the continental procedures most often proposed for borrowing were actually the least feasible transplants, whereas other, more modest possibilities were overlooked or misunderstood. To identify the latter, future researchers must analyze foreign systems comprehensively, in practice as well as in theory, and must subject domestic systems to equally comprehensive scrutiny. Professor Frase further argues that these methodological principles are not unique to international comparisons, but rather should guide all cross-jurisdictional studies, even those within a single country. Applying these principles, Professor Frase compares the American and French criminal justice systems and concludes that the following features of the French system suggest desirable and feasible American reforms: more careful selection, training, and supervision of police, prosecutors, and judges; narrower scope of the criminal law; less frequent use of arrest and pretrial detention; more effective control of prosecutorial charging discretion; less abusive alternatives to plea bargaining; and more frequent use of noncustodial sentencing alternatives.
Richard Frase, Comparative Criminal Justice as a Guide to American Law Reform: How Do the French Do it, How Can We Find Out, and Why Should We Care?, 78 Cal. L. Rev. 539 (1990), available at http://scholarship.law.umn.edu/faculty_articles/456.