It is widely accepted that American procedure—and indeed American legal culture as a whole—are adversarial (and distinctively so). Yet, precisely because this assumption is so deep-rooted, we have no history of how American adversarialism arose. This book provides such a history. It shows that the United States long employed not only lawyer-empowering adversarial procedure, but also various forms of more judge-dependent, quasi-inquisitorial procedure—including the equity tradition borrowed from England and, to a lesser extent, conciliation courts transplanted from continental Europe. However, the United States largely abandoned quasi-inquisitorial procedure by the close of the Civil War and Reconstruction, committing itself to lawyer-driven adversarialism. In explaining this turn to the adversarial, the book looks to developments both internal and external to the law. Among the key internalist factors on which the book focuses are the rise of the previously unknown category of “procedure”, as well as a set of seemingly small changes in the approach to taking testimony before equity-court officials known as masters in chancery, which ended up having unintended systemic consequences. So, too, from a more externalist perspective, the book traces how advocacy of adversarialism became intimately linked with demands for a largely unregulated market and the preservation of white supremacy. The product of deep-rooted inheritances, as well as more immediate and contingent occurrences, the nineteenth-century embrace of adversarsarialism would prove deeply consequential, shaping Americans’ experience of the law down to the present, often in ways that constrain rather than expand access to justice.
The Secret Life of Statutes: A Century of the Trading with the Enemy Act