Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877

by Amalia D. Kessler

Overview

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.

Product Details

ISBN-13:	9780300224849
Publisher:	Yale University Press
Publication date:	01/10/2017
Series:	Yale Law Library Series in Legal History and Reference
Sold by:	Barnes & Noble
Format:	eBook
Pages:	448
File size:	2 MB

About the Author

Amalia D. Kessler is the Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies at Stanford University and winner of the American Historical Association’s J. Russell Major Prize for A Revolution in Commerce.

Table of Contents

Acknowledgments ix

Introduction 1

Chapter 1 The "Natural Elevation" of Equity: Quasi-Inquisitorial Procedure and the Early Nineteenth-Century Resurgence of Equity 19

Chapter 2 A Troubled Inheritance: The English Procedural Tradition and Its Lawyer-Driven Reconfiguration in Early Nineteenth-Century New York 62

Chapter 3 The Non Revolutionary Field Code: Democratization, Docket Pressures, and Codification 112

Chapter 4 Cultural Foundations of American Adversarialism: Civic Republicanism and the Decline of Equity's Quasi-Inquisitorial Tradition 151

Chapter 5 Market Freedom and Adversarial Adjudication: The Nineteenth-Century American Debates over (European) Conciliation Courts and the Problem of Procedural Ordering 200

Chapter 6 The Freedmen's Bureau Exception: The Triumph of Due (Adversarial) Process and the Dawn of Jim Crow 263

Conclusion: The Question of American Exceptionalism and Lessons of History 323

Appendix: An Overview of the Archives 355

Notes 361

Index 433

Editorial Reviews

In this engaging volume Kessler forces us to rethink the very foundations of the legal system with which we think we are so familiar.”—Choice

Inventing American Exceptionalism by Amalia Kessler won the 2018 John Phillip Reid Book Award given by the American Society for Legal History

"Adversarial procedure’s presence is old. But America’s conscious idea (or ideal or ideology) of adversarialism as the exclusionary motif of civil procedure is young. This adversarialism has an origin, a history, and, most importantly, a set of social effects separate from those of mere adversarial procedure. Amalia Kessler draws this original distinction and develops all its consequences. Every proceduralist will have to read her book."—Kevin M. Clermont, Cornell Law School

"Learned and thoughtful, crisply articulated and brilliantly conceived, Inventing American Exceptionalism offers a powerful reinterpretation of our legal past.  More than that, it holds trenchant prescriptions for our badly broken system of justice today."—John Witt, Yale University

"During the 19th century, Amalia Kessler shows us, various modes of judge-dominated, non-adversarial adjudication arose as alternatives to American 'adversarial legalism.' Inventing American Exceptionalism provides a fascinating, lucid, and politically illuminating account of how  those alternative systems were transformed or defeated and of the enduring consequences of these developments."—Robert A. Kagan, author of Adversarial Legalism: The American Way of Law

From the Publisher

“In this engaging volume Kessler forces us to rethink the very foundations of the legal system with which we think we are so familiar.”—Choice

Choice

"During the 19th century, Amalia Kessler shows us, various modes of judge-dominated, non-adversarial adjudication arose as alternatives to American 'adversarial legalism.' Inventing American Exceptionalism provides a fascinating, lucid, and politically illuminating account of how  those alternative systems were transformed or defeated and of the enduring consequences of these developments."—Robert A. Kagan, author of Adversarial Legalism: The American Way of Law

Robert Kagan

"Learned and thoughtful, crisply articulated and brilliantly conceived, Inventing American Exceptionalism offers a powerful reinterpretation of our legal past.  More than that, it holds trenchant prescriptions for our badly broken system of justice today."—John Witt, Yale University

John Witt

"Adversarial procedure’s presence is old. But America’s conscious idea (or ideal or ideology) of adversarialism as the exclusionary motif of civil procedure is young. This adversarialism has an origin, a history, and, most importantly, a set of social effects separate from those of mere adversarial procedure. Amalia Kessler draws this original distinction and develops all its consequences. Every proceduralist will have to read her book."—Kevin M. Clermont, Cornell Law School

Kevin Clermont