Deciding Against Conciliation: The Nineteenth-Century Rejection of a European Transplant and the Rise of a Distinctively American Ideal of Adversarial Adjudication

Abstract

A sizeable body of literature suggests that informal methods of dispute resolution — and, in particular, conciliation — flourish only in societies marked by extensive social hierarchy. Given this literature, it is quite surprising to discover that in the mid-nineteenth century, the United States embarked on an extensive debate regarding whether to adopt "conciliation courts," whose primary function was to reconcile the disputants by persuading them to embrace an equitable compromise. First created by the French Revolutionaries in 1790, conciliation courts were widely established throughout continental Europe. Observing this development, leading American lawyers and politicians pondered seriously whether the United states ought to follow suit. Debate over whether to embrace such institutions occurred at the very highest of levels, and a series of states enacted constitutional provisions authorizing their legislatures to create conciliation courts. Ultimately, however, despite the widespread interest in such institutions, these were never established — except in the notable case of the Freedmen’s Bureau courts of the Reconstruction South. This Article explores this largely forgotten episode in American legal history. It examines why a nation that was radically egalitarian by standards of the time would seriously consider embracing an institution that we tend more commonly to associate with inegalitarian, strongly hierarchical societies — and why, after coming so close to adopting conciliation courts, it ultimately failed to do so. In the process, by situating the debate over conciliation courts in a broader social and legal context, the Article also excavates the origins of the modern, quintessentially American commitment to the virtues of formal, adversarial process.