She applied the “Page 99 Test” to her latest book, Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877, and reported the following:
When Americans imagine their legal system, it is the adversarial trial—dominated by dueling larger-than-life lawyers undertaking grand public performances—that comes to mind. But in Inventing American Exceptionalism, I argue that 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. Indeed, the United States has had a long history of employing not only lawyer-controlled, adversarial procedure, but also various forms of more judge-empowering, quasi-inquisitorial procedure—including, the tradition of equity courts borrowed from England and conciliation courts transplanted from continental Europe.Learn more about Inventing American Exceptionalism at the Yale University Press website.
As adopted in some though not all the American colonies, the quasi-inquisitorial tradition of equity was strengthened during the early nineteenth century—most especially in the Chancery Court of the highly influential state of New York. But from roughly 1817 onward, lawyers practicing in chancery began to insert themselves into proceedings, thus importing into equity the forms of oral, adversarial, lawyer-based control that had long characterized the common law courts. On page 99, I discuss how lawyers litigating in chancery came increasingly to examine and cross-examine witnesses, thus supplanting chancery officials who had previously had the exclusive right to question witnesses (and who recorded written accounts of the testimony, outside the presence of the parties and their lawyers).
In thus coming to dominate chancery proceedings, lawyers were driven not only by a desire to win cases, but also by the contemporary obsession with the classical world. Having embraced classical ideals of the lawyer as orator-statesman, lawyers were eager to play the part of Cicero, undertaking grand public performances in defense of civic virtue. But they discovered that for such purposes, the procedural tools of the adversarial common law—including oral and public jury argument and cross-examination—were far more useful than the written and secret procedures of quasi-inquisitorial equity. They therefore turned away from these quasi-inquisitorial procedures. The American tradition of adversarialism, long imagined as part and parcel of the United States’ distinctively anti-statist, market-based society, was thus born in no small part out of the legal profession’s determination to empower itself. As later parts of the book explore, so too it emerged from (1) efforts to oppose regulations aimed at tempering the worst excesses of market-based society and from (2) attempts by white Southerners (and their Northern Democratic allies) to end radical Reconstruction and its project of racial equality.
The Page 99 Test: A Revolution in Commerce.