One of the stories we Americans tell ourselves is that adversarialism has been part of our legal system since the nation’s founding. As such, we believe, courtroom clashes are essential to the search for truth and justice.
Think of television’s Perry Mason who, week after week, triumphantly fingered the real murderer after a withering cross-examination. Or the real-life Erin Brockovich, who filed a class action for residents of Hinkley, California, who were exposed to chemical contamination and won millions on their behalf.
According to Amalia Kessler, Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies, “we have this sense that adversarialism is inherent in the English common law and that’s who we are.” Her new book, Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877, systematically challenges the “deep-rooted assumption that our system is necessarily adversarial.”
This notion is in fact “so deep that there’s no history of how we came to have that system and that’s odd,” Kessler notes.
A legal historian, Kessler traces the rise of our adversarial legal culture during the volatile decades before and during the Civil War and Reconstruction, as it became a defining characteristic of American legal practice and ideology, thus remaking core aspects of equity procedure—a more judge-centered, inquisitorial system that early Americans adopted from Britain.
Rather than preordained, Kessler reveals, this evolution emerged from changes within the early 19th century legal culture of the new nation as well as from broader debates over market regulation and racial equality. As a result, adversarialism played a key role in defining American legal institutions and practices and, moreover, Kessler writes, it has “much to teach about how contemporary Americans made sense of … the myriad difficulties stemming from such complex and transformative social processes as democratization, the market revolution, religious revivalism, and Reconstruction.”
Her book, released in January, has been widely lauded. Robert Kagan, UC Berkeley professor emeritus of political science and law, calls Kessler’s account “totally revelatory” in demonstrating “how America’s broader political culture of mistrust of power and celebration of individualism ended up pushing equity courts and other efforts to create more [judge-driven] dispute resolution aside.” Like Kessler, Kagan has written widely on adversarialism as well as regulation.
Inventing American Exceptionalism is rooted in Kessler’s early experience as a lawyer in a small office in the civil litigation branch of the U.S. Justice Department’s Civil Division. She served as the office’s liaison to the special master in one case, fielding anxious calls from her clients when the master appeared in their offices unannounced, opening drawers and examining documents. Did he have the authority to do that, her clients asked? Could he question them without a lawyer present?
“No one seemed to know the answer,” Kessler recalls, and the issue was eventually litigated in the U.S. Court of Appeals for the District of Columbia Circuit.
“When I ended up in academia, I wanted to figure out where these special masters came from. I thought I’d just read a book. But basically I had to write the book.”
Generally appointed by a judge to ensure that judicial orders are actually followed and sometimes to assist with pretrial discovery, the special master was originally a creature of equity law and procedure. “Indeed, masters in chancery, as they were initially called, epitomized equity’s quasi-inquisitorial commitment to a mode of procedure that prioritized judicial rather than lawyerly control and that deemed such judicial control vital to the pursuit of truth,” says Kessler. Yet, masters continue to be regularly employed within a system now conceived as entirely adversarial, thus giving rise to questions about the justifications for and limits to their authority of the sort that Kessler first encountered during her stint at the DOJ.
Kessler finds it “extraordinary” that we have not systematically explored the rise of adversarial legal culture and its consequences.
Although the Colonists regarded courts of equity as a vestige of their despised British rulers, “a remarkable rebirth in the ‘natural elevation’ of equity” occurred in the first decades of the 19th century, most notably in New York. However, even states that never created separate courts of chancery eventually adopted many of the principles of equity law and practice over the 19th century, reflecting, in part, a belief that it facilitated economic growth.
Yet at the same time, as Kessler eloquently argues, weaving together research in law, history, and culture, a more adversarial legal culture took root. Reacting to pervasive public animosity toward the legal profession during this period, lawyers sought ways to improve their reputation, their professional monopoly, and their political power. Embracing “the common law’s oral, adversarial procedures … enabled them to undertake grand public performances in defense of civic virtue.” Think Clarence Darrow. Or Gerry Spence.
This move toward a more adversarial legal culture also reflects rancorous battles over the proper role for government in the nation’s growing market economy and over efforts to blunt the worst excesses of capitalism during these years. Finally, the largely unsuccessful efforts to create conciliation courts such as Freedmen’s Bureau courts to provide a measure of restitution to former slaves following the Civil War were another missed opportunity to untangle due process from adversarial process.
In the end, “adversarialism became part and parcel of a grand narrative of American exceptionalism” if not synonymous with due process, according to Kessler.
She insists that Inventing American Exceptionalism is primarily a history rather than an account of the current U.S. legal system. But she nonetheless points to the embrace of adversarial culture and the rise of lawyering as producing contemporary winners and losers, noting for instance the indirect lines between 19th century developments and today’s arbitration system—one that favors repeat corporate players over individuals as well as the ongoing crisis in access to justice.
Certainly there are “great triumphs”—the Civil Rights Movement, for example—which are “correctly associated in part with lawyering,” Kessler says. “I’m just asking for some recognition of the limits of that system as well.”
Kessler joined the Stanford Law faculty in 2003; her previous book, A Revolution in Commerce: The Parisian Merchant Court and the Rise of Commercial Society in Eighteenth-Century France, based on her PhD dissertation in European history, charted the rise of commercial society in France.
Molly Selvin, a legal historian and former staff writer for the Los Angeles Times, is a freelance writer based in Los Angeles.