Amalia D. Kessler. Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800–1877.

Abstract

Amalia D. Kessler’s Inventing American Exceptionalism is a richly detailed history that examines legal adversarialism as a readily apparent but often taken for granted element of U.S. legal culture. Idealized as a mode of common-law legal procedure in which lawyers settle disputes for independent parties through the examination of oral testimony in public proceedings, adversarial legalism has come to be seen as intertwined with key elements of U.S. national identity such as competitive individualism and liberal anti-statism. Yet Kessler argues that the broad adoption of adversarial legalism was never foreordained. Inventing American Exceptionalism shows the development of the peculiar commitment toward adversarialism as other models of dispute settlement and adjudication lost credibility within particular social, political, and historical contexts. The story thus revolves less around adversarialism per se than it does around the great alternative to the common law: equity. Derived from civil law traditions, equity courts followed a “quasi-inquisitorial” approach to procedure in which court officials conducted fact-finding through written testimonies that were kept secret during the investigation. Equity also had recourse to unique remedies such as the injunction. Kessler examines the origins of equity in Roman law and the English treatise literature, but her primary focus is on the uptake of this approach in the New York Court of Chancery and on the later moments in which courts and tribunals experimented with equity proceedings, such as in conciliation courts in Florida and California or the Freedman’s Bureau Courts established during Reconstruction.