Our Inquisitorial Tradition: Equity Procedure, Due Process, and the Search for an Alternative to the Adversarial
Amalia D. Kessler
Stanford Law School
Cornell Law Review, Vol. 90, July 2005
American lawyers think of our legal system as firmly adversarial. Yet, as this Article demonstrates, as late as the nineteenth century, Anglo-American courts of equity employed a mode of procedure, which like that of the courts of continental Europe, derived from the Roman-canon tradition and thus was significantly inquisitorial. And contrary to our tendency to view inquisitorial procedure as unfair, equity procedure was deeply committed to due process. Over the course of the nineteenth century, equity came to embrace the oral, adversarial method of the common law, such that - even prior to the merger of law and equity in 1938 - our procedural framework became entirely adversarial. Yet many inquisitorial devices survived, even after 1938. Indeed, as this Article posits, some of the worst abuses of modern litigation, and in particular, our discovery practice, can be traced to the ill-considered way in which inquisitorial devices were imported into a common-law based adversarial framework.
This Article argues that we need to recover our lost history in order to diagnose our ailments: We must recognize that the monstrosity of modern litigation is the product of a botched marriage between inquisitorial and adversarial traditions. But we also need to rediscover our past in order to see the virtues of the inquisitorial. As this Article suggests, inquisitorial modes of procedure may provide a remedy to the widely recognized inefficiencies and unfairness of adversarial procedure, but our ability to deploy inquisitorial procedure has been stymied by an unnecessary adversarial ideology, based on a false reading of our own history. The Article then concludes with a brief excursus on lessons that we might learn from procedural developments in the French legal system, one of the world's leading, most influential civil-law systems - and a system that, like equity, derived from Roman-canon, and thus inquisitorial, foundations.
Number of Pages in PDF File: 84Accepted Paper Series
Date posted: December 12, 2004
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