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  • Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800–1877 by Amalia D. Kessler
  • Alan Cusack (bio)

Law, Legal history, Civil procedure

Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800–1877. By Amalia D. Kessler. (New Haven, CT: Yale University Press, 2017. Pp. 464. Paper, $35.00.)

The story of how adversarial procedure established itself as the dominant model of adjudication in American criminal justice procedure has been [End Page 733] told often enough in the work of John Langbein, Lawrence Friedman, and Stephen Landsman. However, what is insufficiently acknowledged in the literature of these scholars, and indeed within mainstream historical legal scholarship generally, is the complex interplay of legal, political, cultural, and socioeconomic factors that contributed to the adversarial paradigm’s emergence as the outstanding motif of American civil procedure. Amalia Kessler addresses this lacuna with Inventing American Exceptionalism, an eloquent and insightful work that offers readers a rigorous reinterpretation of America’s legal past and yields a long overdue exposition of the historical origins of America’s adversarial civil legal culture.

Kessler’s overarching objective in undertaking this historical portrait is to dispel the widely promoted myth that American civil procedure has always embraced a distinctly accusatorial character. By elucidating the quasi-inquisitorial past of America’s civil justice machinery—in the guise of New York’s flourishing Chancery court scene and the political debates that surrounded the formation of conciliation courts in the nineteenth century—Kessler impressively dismantles this inaccurate generalization. Contrary to popular belief, the presence of adversarial sensibilities within American civil procedure, it would seem, is not inveterate. Indeed, in revealing the nuanced economic and social debates that gave birth to this procedural tradition, Kessler’s work is of immense value, not only in the sense of offering an important counter-narrative to the “grandiose, public-minded claims so often made in support of American adversarial procedure” (341) but also in the wider sense of architecting a culturally precise, historically rigorous framework from which the appropriateness of America’s continued subscription to this model can be appraised. As Kessler writes, “the fact that the United States has a significant quasi-inquisitorial past should, at least to some extent, help to reframe the boundaries of the imaginable” (341).

In seeking then to reframe the boundaries of the imaginable, Kessler traces the evolution of adversarial civil procedure over the course of six insightful chapters. By opening in the burgeoning halls of the New York Chancery at the turn of the nineteenth century, Kessler roots the book’s narrative in a quintessentially non-adversarial context from the outset. Helmed by the civic republican Chancellor James Kent, these courts proved to be an exception to the democratic drift away from equity procedure that was taking hold elsewhere across common-law world in the nineteenth century. Designed around “an idealized, heroic conception of [End Page 734] the equity judge” (37)—an individual who was expected to resolve disputes through secret, written interrogatories in accordance with his own moral sensibility—these quasi-inquisitorial courts, Kessler argues, allowed equity judges to at once augment their reputation and stymie the democratic revolution that surrounded them. However, with the decision in 1817 to allow equity pleadings to proceed through oral, adversarial testimony, came a shift in the structure of the New York Chancery as lawyers colonized ownership of the courtroom narrative, replacing chancellors as the embodiment of the nation’s civic republican elite. The promulgation of the Field Code of Procedure shortly afterwards, Kessler writes, concretized the New York Chancery’s retreat from its quasi-inquisitorial past by effectively abolishing the law/equity divide and establishing a single, uniform mode of procedure that corresponded with the oral, adversarial tradition.

Significantly, a similar drift toward adversarial justice was also apparent, Kessler points out, in the voluminous debates that surrounded the introduction of American conciliation courts in the late nineteenth century. A creature of Benthamite philosophy, these courts were intended to provide litigants with a lawyer-free forum that would allow them to settle grievances by having recourse to the judgement of a local authority figure. As evidenced, however, by the failed Freedmen’s Bureau courts experiment...


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