Recalling past convergence: equity procedure and the United States’ forgotten inquisitorial tradition

Abstract

We commonly hear today that civil law and common law legal systems are converging—including as concerns the law of procedure. Although scholars tend to claim that such convergence is a product of recent globalization, an examination of the history of equity procedure in the United States suggests that procedural convergence is in no way new. Nineteenth-century U.S. chancery courts applied a mode of procedure that empowered court officials vis-à-vis lawyers and litigants and that relied on a written, secrecyoriented approach to taking witness testimony. In these respects, U.S. equity procedure embraced key aspects of the inquisitorial model of procedure long associated with the Roman-canon-based civil law tradition and thought to be anathema to the common law. This history suggests that convergence is much older than we generally assume, and in so doing, also serves as a valuable reminder of the limits of our standard comparative categories of analysis.