June 10, 2009

American legal history furnishes more precedent than is generally realized for the use of investigational ("inquisitorial") judicial procedure, special masters and distinctive procedure to handle complex cases, according to Prawfsblawg guest poster John Pfaff (Fordham), drawing heavily on a paper by Amalia Kessler (Stanford), "Our Inquisitorial Tradition: Equity Procedure, Due Process, and the Search for an Alternative to the Adversarial", 90 Cornell L Rev 1181 (2005). From the SSRN summary of Kessler's article:

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. ... We must recognize that the monstrosity of modern litigation is the product of a botched marriage between inquisitorial and adversarial traditions.