Tuesday, March 7, 2017

Kessler on the Origins of American Adversarial Legal Culture

Jason Kilborn provides the following guest post on Amalia Kessler’s recent book, Inventing American Exceptionalism:  The Origins of American Adversarial Legal Culture, 1800-1877 (Yale Univ. Press 2017):

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Given the title, I thought the book was about why US lawyers (or our legal culture generally) are so bellicose. Instead, it's about why we gravitated toward lawyer-driven adversarial (accusatorial) procedure, as opposed to European style, judge-driven inquisitorial procedure, and how the result of our choice is now a deeply ingrained part of US legal culture. It's about the fiercely independent US rejection of the canon-civil law approach of chancery/equity (secret, written, controlled by bureaucrats, headed by one elitist chancellor) in favor of the supposedly more democratic law courts (open, oral, lawyer-driven, headed by many judges and involving juries in fact-finding). It thus nicely supplements other recent books, like Suja Thomas's on the key role of our (all but moribund) trial-and-jury process as a key aspect of our democracy (http://sujathomas.com/missing-american-jury/).


Fundamentally, this is a fascinating narrative and argument about the mid-nineteenth-century development of the discrete subject called "procedure" in US and English law, and it tells a really compelling story about how the US branch moved gradually but decisively away from written, secret procedure (especially in the gathering and presentation of testimonial evidence) and toward an oral, public, lawyer-driven process.  For history buffs, the first half of the book offers a well-researched and detailed account of the blow-by-blow operation of old English and early American pre-trial equity procedure that really filled some gaps in my knowledge of the subject and helped to enlighten my appreciation of why we do many of the things we do today.  I finally feel like I understand the meaning of the merger of law and equity.  The rich description of how Kent and Story thought of themselves and the role of Chancellor in the structure of early US society and politics was especially engaging.  The second half of the book is an argument as to why US procedure, having tilted decidedly toward the adversarial, oral, lawyer-driven side of the divide, remained there after the mid-1800s.  It offers cogent arguments based on the culture of early American society and the roles of lawyers and lawyering within that society, a detailed account of the rejection by legislators in New York, Florida, and California of European “conciliation” courts, even where there was an existing and quite satisfactory Spanish-colonial experience with such bodies, and an exploration of the largely unsatisfactory Reconstruction experience with Freedmen’s courts in mediating disputes between newly freed African Americans and white Southerners.  These latter several chapters present a really enlightening and thought-provoking challenge to the preconditions for successful mediation, and a serious challenge to the modern movement toward mandatory mediation. 


The book is well researched and extremely well written and organized, stringing together a clear, logical sequence of engaging historical observations to offer a powerful explanation of the mindset behind the contrast between US and non-US procedure today.  It’s well worth a read.


--Jason Kilborn




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