American lawyers think of our legal system as firmly adversarial. Yet – as Professor Kessler 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. Moreover, she argues that, contrary to our tendency to view inquisitorial procedure as unfair, equity procedure was deeply committed to due process. Professor Kessler suggests, however, that 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. By rediscovering our lost inquisitorial history, she argues, we can learn how our botched marriage of inquisitorial and adversarial traditions resulted in much of the inefficiency and unfairness of modern civil litigation, and we can begin self-consciously and systematically to develop the inquisitorial framework necessary to remedy our adversarial excesses.
To facilitate procedural reform, Professor Kessler challenges our conception of inquisitorial procedure as alien to and incompatible with our commitment to due process. She begins by discussing modern, largely unsuccessful efforts to remedy adversarial unfairness and inefficiencies. She then describes traditional equity procedure, thus showing that inquisitorial approaches to adjudication are a well-established feature of our inherited legal culture. Professor Kessler argues that equity’s quasi-inquisitorial approach prioritized what she identifies as the truth-seeking function of due process, while also fulfilling what she calls the negative, state-checking function of due process. Next, she analyzes how, over the course of the nineteenth century, equity’s quasi-inquisitorialt radition, which emphasized written and secrecy-oriented procedures, gradually gave way to oral and adversarial procedures mirroring those of (and increasingly borrowed from) the common-law tradition. Then, she describes how this transformation in equity procedures led in the early twentieth century to a reconfiguring of the inquisitorial master as a trial master. She suggests that the subsequent rise of increasingly complex litigation during the second half of the twentieth century, and especially the structural injunction suit of the Civil Rights era, led to a re-emergence of the master’s inquisitorial role, but that scholars have mistakenly viewed this role as a new phenomenon. Professor Kessler then posits that much of the inefficiency and unfairness of modern civil litigation-and, most especially, of the pretrial discovery process-results from integrating equity procedures into an adversarial context that permits parties to abuse powerful devices that were once controlled by the courts. Finally, she points to recent French procedural reforms to suggest that we can adopt more inquisitorial procedures without violating the core values of due process.
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