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Legal Commentary

: Prawfs

Our Inquisitorial History

By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel

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My previous post provided a (cursory) glance at broad changes in legal procedure that came about in response to fundamental changes in epistemology. In this post I want to narrow my focus to transformations that have taken place within the United States. My comments here draw heavily from Amalia Kessler's paper, Our Inquisitorial Tradition: Equity Procedure, Due Process, and the Search for an Alternative to the Adversarial, 90 Cornell L Rev 1181 (2005).

Kessler's primary point is this: our legal system--and by "our" I mean that in the United States since the Revolution--has not always been as adversarial as it is today. In particular, equity courts were far more inquisitorial. Special masters had powers close to those I would want them to have today. They gathered the necessary evidence on their own, they presented their results only when they had completed their investigation (thus setting forth the whole picture at once, rather than using the fractured method adversarialism requires), and the judge was to take the master's report as presumptively correct (though some review was expected). In other words, we had in the 18th and early 19th century a system roughly close to what I would desire today.

So how did we lose it? Kessler's argument suggests that it was more by accident than by design. A leading equity judge, Chancellor Kent of New York State, allowed oral testimony into equity courts in 1817. He did not think it would undermine the role of the master, but his assumption proved to be incorrect. Oral testimony along with cross-examination shifted the master's role towards something less inquisitorial and more adversarial. As a result, the special master's role declined. Kessler in fact argues that the claim in the Federal Rules of Civil Procedure that masters are used sparingly is perhaps less a normative statement than an acknowledgement of empirical reality.

The loss of the inquisitorial special master is quite disappointing. Equity and common law were designed to handle different issues. More specifically, equity--and its agents such as special masters--existed in part to handle questions too complex for common law juries. As Kessler puts it (at page 1215):

[O]ne of the primary purposes of procedure in [the common law] tradition was to ensure simplicity and, thus, facilitate adjudication by a lay jury. ?. [S]trict pleading devices served to frame a single, relatively easy factual question, thereby obviating much need for fact-finding. ? Litigants at law thus had great freedom to control the evidence presented and the sequence and nature of the proceedings, but could only exercise this freedom within a very circumscribed sphere. This, in turn, meant that litigants had relatively limited opportunities and incentives to use the adversarial framework to undermine truth-seeking.

In other words, common law juries were not intended to handle cases involving complex evidence. The merger of equity and common law, however, awkwardly threw all the issues before them. We should thus not be surprised that there have been efforts of late to reintroduce inquisitorial procedures--such as specialized courts (not just "science courts," which more or less failed to take hold, but probate courts, bankruptcy courts, etc. etc.)--into the legal system. Some effort to fix how the courts use scientific evidence is inevitable.

Kessler rightly laments that "the supremacy of the adversarial model ... [has] greatly constrained our imaginative capacity." When I suggest to people that scientific evidence should not be handled adversarially, I often hear in reply: "But that is not how our legal system operates." But it has operated that way in the past, and there is no reason to assume that it won't again. We have forgotten our own history, and to our detriment. Using inquisitorial devices to handle complex evidence beyond the ken of a lay jury is part of our legal history, and I believe it will be--and has to be--part of our legal future.

Full post as published by Prawfs on June 09, 2009 (boomark / email).