The legal systems of the world differ widely in how much power they vest in lawyers, and, by extension, in how necessary it is to pay for a good lawyer in order to protect one's legal rights. In the classic telling, the systems of England and, especially, the United States are adversarial, meaning that they vest relatively little power in the judge. In these systems, the judge is relegated to the role of a passive referee in what is fundamentally a contest between the parties (and actually between the parties’ lawyers), who hold the initiative in important matters such as gathering facts. This regime of lawyer domination contrasts with the systems of France and Germany, which are inquisitorial, in that the judge has much greater autonomy and discretion in matters such as fact gathering.
Amalia Kessler, a comparative legal historian who began as a specialist on France, has produced the first study to historicize the United States's status as the world's pre-eminent adversarial system. She makes a powerful argument that lawyer domination is not trans-historically American, but that it originated from a specific set of circumstances in the mid-nineteenth century. The book presents vast new historical research on the workaday operations and procedures of American legal institutions, while simultaneously connecting those operations to broader developments in politics and culture.
Kessler reconstructs two major alternatives to adversarialism that Americans for a time entertained but then rejected. The first—to which she devotes the core of the book—is equity, a court system in which the judge (and other court officials) played something closer to an inquisitorial role when compared with Anglo-American common law courts. It is familiar that equity existed in England from medieval times to the nineteenth century, and in some of the American colonies. But Kessler is the first to go into depth about how equity operated in the early American republic. She finds that, for a time, equity experienced a “rebirth” (19), in that jurists such as James Kent developed a distinctly American (Federalist) argument for equity's judge-centered approach, with the aim of limiting the excesses of democracy and promoting commercial growth. This conception partook of an elite republicanism that cast judges as disinterested guardians.
From this peak in the prestige of inquisitorial equity, Kessler then traces its demise using a case study of New York state. It is widely known that New York officially abolished equity as a separate court system and procedural regime between 1846 and 1848 by constitutional convention and legislation. Kessler adds to this political story with new research on the populist and pro-debtor critiques of equity. Yet crucially, she also demonstrates, through a masterful examination of the manuscript records of a large sample of equity cases in 1801–46, that well before equity's official demise, its once-inquisitorial proceedings had been taken over by parties’ lawyers in a gradual, incremental manner. This development occurred often without any express official authorization; evidentiary proceedings that were once limited to court officials and witnesses now had advocates present, engaging in oral cross-examination. The shift was well underway in the 1810s and was complete prior to 1846. Lawyers succeeded in this takeover effort because New York equity never developed a substantial staff of court officials capable of holding to the inquisitorial approach: officials were few in number, appointed through an emerging party patronage system that did not inspire respect or cohesion, and did their jobs part-time while maintaining private law practices that gave them reason to favor lawyer domination.
The upshot of Kessler's account is that the lawmakers who officially abolished equity to populist fanfare in 1846–48 were really just ratifying a transformation already accomplished by lawyers in real life. And the lawyers’ motivation for bringing about the pre-1846 shift was hardly populist. On the contrary, Kessler argues that it was part of their status-seeking efforts to raise their profiles, both intraprofessionally and society-wide, within the performative and oratorical culture of the period: “Rejecting Kent's effort to identify a narrow group of (Federalist) equity judges as the nation's civic republican elite, lawyers as a whole claimed the republican mantle of leadership for themselves” (194). What the constitutional and legislative reformers of 1846–48 did accomplish, argues Kessler, was at the intellectual level. In abolishing the separate procedures of equity, they became the first lawmakers in America or England to think up and use “procedure” as a conceptual category in the sense that we use it today.
In addition to equity, the second alternative to adversarialism was courts of conciliation, which Kessler explores in the last two chapters of the book. These kinds of tribunals, established in several continental systems and theorized by Jeremy Bentham, were presided over by lay judges (community notables, or representatives of corporatist interests) who engaged in informal dispute resolution that obviated the need for parties to have lawyers. In contrast to equity's extant narrative as a long-standing system that was ultimately dismantled, the story of American conciliation courts is one of unadopted proposals and brief experiments. The most important of these was the Freedmen's Bureau's use of such courts to resolve inter-racial labor disputes for approximately 4 years during Southern Reconstruction. Northern whites viewed the Bureau courts as extralegal and, therefore, a salutary means of paternalistic education for freedpeople and Southern whites in the ways of free labor. By contrast, Southern whites viewed them as extralegal and therefore un-American, drawing on the ascendant conception of due process as defined by the adversary system.
Overall, this book is a tour de force and will become a landmark in the American and comparative history of procedure and legal institutions. Whereas many histories in this genre succeed in recreating internal court operations but have a narrow and technical cast, Kessler provides us—especially in the core chapters on equity—with a superb example of how to integrate the nitty-gritty of institutional history with the cultural and political history of the time. Furthermore, her book is filled with original findings on the United States and simultaneously informed by deep comparative learning.
