Cultural Foundations of American Adversarialism

Chapter 4 inquires into lawyers’ motivations for embracing oral, adversarial procedure. It notes that lawyers had strategic interests for preferring adversarialism, and most especially, cross-examination. Antebellum lawyers, however, viewed procedure not only as a mechanism for winning cases, but also as a means of improving their status and standing within both the legal profession and the community at large. These were heartfelt goals during a period in which lawyers believed themselves to be in fierce competition with one another and in which they were subject to enormous public animosity. With these goals in mind, lawyers drew on the pervasive discourse of civic or classical republicanism, claiming to be modern-day Ciceros and seeking to create a distinctively American model of courtroom oratory. In so doing, they came to conclude that the Ciceronian model of oratory that they favored—one requiring grand public performances in defense of civic virtue—implied a particular model of procedure. This was the model afforded by the common law and its practices of public jury argument, as well as oral, adversarial witness examination and cross-examination. Because equity’s written and secrecy-oriented, quasi-inquisitorial procedure denied antebellum lawyers the opportunity for republican self-display, they turned away from it.

The Freedmen’s Bureau Exception

Chapter 6 examines the Freedmen’s Bureau courts as an exception to the otherwise prevailing failure of conciliation courts to take root in American soil. Created to integrate the newly freed African-Americans into Southern society and to reconfigure the latter on free labor foundations, the Bureau courts were understood by Northern architects of Reconstruction to be a kind of conciliation court. Long promoted as able to attenuate market-driven conflict and restore communal harmony, the conciliation court seemed tailor-made for the Reconstruction South with its mounting tensions between white landowners and penniless, recently freed slaves. But the free labor values that Northerners viewed as self-evident truths that Bureau courts (qua conciliation courts) would simply help the parties to recognize were seen by white Southerners as foreign values, imposed on them by force. Appealing to the defense of adversarialism developed before the war, Southerners denounced the Bureau courts as un-American. With the Supreme Court’s decision in Ex parte Milligan (prohibiting military tribunals from trying civilians) and the ratification of the Fourteenth Amendment, their campaign to dismantle the Bureau courts and to preserve their racial supremacy would prove victorious. The restoration of adversarial justice would thereafter be framed as a triumph of due process.

The Non-Revolutionary Field Code

Chapter 3 shows how in the 1820s and 1830s, with the rise of the political party machine known as the Albany Regency and the democratization of politics that followed, many politicians sought to demonstrate their populist credentials by lambasting chancery and its quasi-inquisitorial procedure as elitist. While top-down legislation and constitutional law played a relatively minimal role in causing the turn toward oral adversarial procedure, policy makers’ critique of chancery and its quasi-inquisitorial procedure served to undermine the legitimacy of the institution and its procedural system. This, in turn, facilitated the process of change that lawyers litigating in chancery had themselves initiated. The precise arguments raised against chancery varied across the decades from the constitutional convention of 1821 to that of 1846, but—whether focused on chancery’s association with the spoils system, its troubling relationship to the market revolution, or the problem of mounting docket pressures—they were all framed as defenses of democratization. The end result was to smooth the way for lawyers’ embrace of oral, adversarial procedure. Thus, when the Field Code of Procedure was enacted in 1848, it was largely a fait accompli, reflecting changes that had already occurred, rather than, as long assumed, initiating a procedural revolution.

Conclusion

The Conclusion reflects on the accuracy of the nineteenth-century American perception that the United States possessed a distinctively adversarial legal culture and considers how developments traced in this book relate to the present. A comparative overview of nineteenth-century continental European and English civil procedure reveals that Americans were correct that their legal culture was uniquely adversarial. But the postbellum emergence of industrialization and concomitant birth of the regulatory state gave rise to new specialist lawyers, valued more for their expertise and negotiating skills than for their ability to litigate. The path connecting the late nineteenth-century zenith of adversarialism to the present was thus indirect. Nonetheless, the Conclusion argues that the history recounted in this book contributed to making American legal culture today distinctively adversarial. And it suggests that, while there are virtues to adversarialism, Americans have paid a high price for this inheritance—including comparatively greater difficulty in obtaining access to justice. Although a comprehensive reform proposal lies beyond this book, the Conclusion explores some nonadversarial possibilities raised by Americans’ forgotten history of equity and conciliation courts. The starting point, it argues, is to abandon the (constructed and contingent) assumption that due process and adversarial procedure are necessarily the same.

A Troubled Inheritance

Chapter 2 examines New York Chancery, the leading court of equity in the early United States. It argues that as of about 1800, chancery largely followed English equity’s model of quasi-inquisitorial procedure but that by the 1840s the court had embraced the oral, adversarial methods of the common law. New York Chancery’s turn against quasi-inquisitorial procedure was rooted in certain long-standing structural features of the court—most importantly, a disjunction between its quasi-inquisitorial logic (which called for a large, professional staff) and the choice to rely on a very minimal, part-time staff, assisted by lay individuals commissioned on a case-by-case basis. This disjunction created opportunities for lawyers to subvert equity’s quasi-inquisitorial logic by inserting themselves into proceedings that were supposed to be conducted entirely by judicial officers outside the presence of the parties and their counsel. Driven by lawyers’ eagerness to exercise more procedure control, a series of incremental changes occurred—first in proceedings before masters and then in those before examiners— resulting in the near-complete transformation of equity into an oral, adversarial system of procedure. The stage was thus set for the emergence of the Field Code of 1848 and its unified, oral and adversarial model of procedure.

Introduction

The Introduction outlines the book’s argument, structure, and source base. It provides an overview of the distinction between the adversarial and inquisitorial models of procedure. So too, it explores the problem of methodology, rejecting the prevailing tendency among legal historians to insist on a necessary opposition between internalist and externalist approaches. While historians of procedure have tended to embrace internalism, the methodology pursued in this book combines elements of both approaches. As the Introduction details, the book explains the American turn toward adversarialism partly in relation to contemporary developments within the law. Key among these is the remarkable fact (neglected by scholars to date) that the category of “procedure” emerged only around the mid-nineteenth century. But so, too, the book adopts an externalist perspective, seeking to relate procedural change to the grand arc of nineteenth-century American history—including such fundamental developments as democratization, the market revolution, religious revivalism, and Reconstruction. Debates over the nature and purposes of procedure thus ended up playing a key role in defining not only American law, but also its social structures and values, and indeed national identity as a whole.

Market Freedom and Adversarial Adjudication

Chapter 5 considers the broader values with which Americans, including nonlawyers, came to invest adversarial procedure. Troubled by the radical economic transformations of the era (including the emergence of a growing class of dispossessed laborers), many Americans—and especially those influenced by then prevalent religious revivalism and utopian fervor—argued for the adoption of European-style conciliation courts as a means of tempering market excesses. Largely ignored in the scholarly literature, the ensuing debates in Florida, California, and New York were part of a transnational discussion launched by Jeremy Bentham, who coined the term “conciliation court” based on an institution created by the French Revolutionaries and exported throughout much of Europe (and its colonies). In the United States, these debates resulted in the enactment of state constitutional provisions authorizing legislatures to establish conciliation courts and legislation that did so. But the courts themselves failed to take meaningful root in the antebellum period. Their ultimately triumphant opponents rejected them as paternalistic institutions, suited only to feudal or despotic European nations. A nation that was so distinctively liberty-oriented and market-based, they argued, necessarily employed a distinctively adversarial approach to social, economic, and (perhaps especially) labor relations—and thus to legal procedure as well.

The “Natural Elevation” of Equity

Chapter 1 explores the reasons why equity took root in American soil despite the long-standing suspicion, dating primarily from the seventeenth-century English Revolution and exacerbated by the colonial experience, that it was linked to royal tyranny. Challenging those who offer an exclusively functionalist explanation, focused on commercial needs, it emphasizes the important role played in equity’s early nineteenth-century institutionalization by two leading, contemporary jurists—James Kent, Chancellor of New York, and Joseph Story, U.S. Supreme Court justice and author of the leading contemporary treatises on equity. The chapter argues that these men conceptualized equity procedure as a quasi-inquisitorial system intended to bolster a powerful, discretion-laden judicial elite. This elite, they insisted, would promote national greatness and thereby elevate the standing of the new nation vis-à-vis its older, European competitors. At the same time, they believed, such judges would maintain a firm grip on the helm of state, fostering the new country’s commercial growth, while also assisting it to avoid the worst dangers and excesses of democratization. With time, however, Kent’s and Story’s very success in institutionalizing chancery’s quasi-inquisitorial procedure and linking it to an elitist vision of social and political rule would contribute to ushering in a backlash against it.