Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877 (Yale Law Library Series in Legal History and Reference)

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. A highly engaging account of the developments—not only legal, but also socioeconomic, political, and cultural—that gave rise to Americans’ distinctively lawyer-driven legal culture

When Americans imagine their legal system, it is the adversarial trial—dominated by dueling larger-than-life lawyers undertaking grand public performances—that first comes to mind. But as award-winning author Amalia Kessler reveals in this engrossing history, it was only in the turbulent decades before the Civil War that adversarialism became a defining American practice and ideology, displacing alternative, more judge-driven approaches to procedure. By drawing on a broad range of methods and sources—and by recovering neglected influences (including from Europe)—the author shows how the emergence of the American adversarial legal culture was a product not only of developments internal to law, but also of wider socioeconomic, political, and cultural debates over whether and how to undertake market regulation and pursue racial equality. As a result, adversarialism came to play a key role in defining American legal institutions and practices, as well as national identity. A highly engaging account of the developments—not only legal, but also socioeconomic, political, and cultural—that gave rise to Americansâ€TM distinctively lawyer-driven legal culture When Americans imagine their legal system, it is the adversarial trial—dominated by dueling larger-than-life lawyers undertaking grand public performances—that first comes to mind. But as award-winning author Amalia Kessler reveals in this engrossing history, it was only in the turbulent decades before the Civil War that adversarialism became a defining American practice and ideology, displacing alternative, more judge-driven approaches to procedure. By drawing on a broad range of methods and sources—and by recovering neglected influences (including from Europe)—the author shows how the emergence of the American adversarial legal culture was a product not only of developments internal to law, but also of wider socioeconomic, political, and cultural debates over whether and how to undertake market regulation and pursue racial equality. As a result, adversarialism came to play a key role in defining American legal institutions and practices, as well as national identity. "When Americans imagine their legal system, it is the adversarial trial--dominated by dueling larger-than-life lawyers undertaking grand public performances--that first comes to mind. But as award-winning author Amalia Kessler reveals in this engrossing history, it was only in the turbulent decades before the Civil War that adversarialism became a defining American practice and ideology, displacing alternative, more judge-driven approaches to procedure. By drawing on a broad range of methods and source--and by recovering neglected influences (including from Europe)--the author shows how the emergence of the American adversarial legal culture was a product not only of developments internal to law, but also of wider socioeconomic, political, and cultural debates over whether and how to undertake market regulation and pursue racial equality. As a result, adversarialism came to play a key role in defining American legal institutions and practices, as well as national identity"--Back cover "When Americans imagine their legal system, it is the adversarial trial--dominated by dueling larger-than-life lawyers undertaking grand public performances--that first comes to mind. But as award-winning author Amalia Kessler reveals in this engrossing history, it was only in the turbulent decades before the Civil War that adversarialism became a defining American practice and ideology, displacing alternative, more judge-driven approaches to procedure. By drawing on a broad range of methods and source--and by recovering neglected influences (including from Europe)--the author shows how the emergence of the American adversarial legal culture was a product not only of developments internal to law, but also of wider socioeconomic, political, and cultural debates over whether and how to undertake market regulation and pursue racial equality. As a result, adversarialism came to play a key role in defining American legal institutions and practices, as well as national identity"--Book cover 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 text 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