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Inventing American ExceptionalismThe Origins of American Adversarial Legal Culture, 1800-1877$
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Amalia D. Kessler

Print publication date: 2017

Print ISBN-13: 9780300198072

Published to Yale Scholarship Online: May 2017

DOI: 10.12987/yale/9780300198072.001.0001

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PRINTED FROM YALE SCHOLARSHIP ONLINE (www.yale.universitypressscholarship.com). (c) Copyright Yale University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in YSO for personal use.date: 07 April 2020

A Troubled Inheritance

A Troubled Inheritance

The English Procedural Tradition and Its Lawyer-Driven Reconfiguration in Early Nineteenth-Century New York

(p.62) 2 A Troubled Inheritance
Inventing American Exceptionalism

Amalia D. Kessler

Yale University Press

Chapter 2 examines New York Chancery, the leading court of equity in the early United States. It argues that as of about 1800, chancery largely followed English equity’s model of quasi-inquisitorial procedure but that by the 1840s the court had embraced the oral, adversarial methods of the common law. New York Chancery’s turn against quasi-inquisitorial procedure was rooted in certain long-standing structural features of the court—most importantly, a disjunction between its quasi-inquisitorial logic (which called for a large, professional staff) and the choice to rely on a very minimal, part-time staff, assisted by lay individuals commissioned on a case-by-case basis. This disjunction created opportunities for lawyers to subvert equity’s quasi-inquisitorial logic by inserting themselves into proceedings that were supposed to be conducted entirely by judicial officers outside the presence of the parties and their counsel. Driven by lawyers’ eagerness to exercise more procedure control, a series of incremental changes occurred—first in proceedings before masters and then in those before examiners— resulting in the near-complete transformation of equity into an oral, adversarial system of procedure. The stage was thus set for the emergence of the Field Code of 1848 and its unified, oral and adversarial model of procedure.

Keywords:   New York Chancery, quasi-inquisitorial procedure, adversarial procedure, masters in chancery, examiners in chancery, commissioners, testimony, cross-examination, Jeremy Bentham

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