Berkeley Legal History Workshop Presents Alexander Arnold

“So, to the Country”: Truth-Seeking and the Birth of the Common Law

Alexander Arnold is an Assistant Professor of Law at the UCLA School of Law, where he teaches courses on civil procedure, federal courts, and legal history. His research focuses on the history of civil procedure, evidence, and law and economics. Prior to joining the faculty at UCLA Law, he clerked for Judge Alvin K. Hellerstein of the Southern District of New York and worked in trial and appellate litigation at a firm in New York City. He also previously held positions as a fellow at the École Normale Supérieure in Paris and the Center for the Administration of Criminal Law.

Arnold holds a J.D. from NYU Law, where he was a Furman Academic Scholar and Lederman Fellow, a Ph.D. in intellectual history from NYU’s Department of History & Institute of French Studies, and a B.A. in intellectual history from NYU’s College of Arts & Science. Arnold is a recipient of NYU Law’s Vanderbilt Medal and Law & Economics Prize and has received fellowships from institutions including the Mellon Foundation, the Institute for New Economic Thinking, the History of Science Society, and the Remarque Institute.

Arnold’s writing has appeared in publications including the Law and History Review, Modern and Contemporary France, and the Los Angeles Review of Books.

Abstract

very day, courts purport to seek the truth in the cases before them. But are courts truth-seeking institutions? This question has been simmering for decades, as some scholars have argued that litigation should prioritize values other than truth-seeking, and core procedure doctrines have been re-designed to promote “efficiency.” Recently, questions about the relationship between courts and truth-seeking have become increasingly pressing as scholars diagnose the rise of a “post-truth” era, and hotly debate whether courts today have the power, and the will, to seek the truth. To date, however, there has been no focused account of how and why common law courts got into the business of truth-seeking in the first place. This Article fills this gap by uncovering the roots of common law truth-seeking. To do so, it examines a wide range of primary source materials including historical case records, legal treatises, and political accounts in Latin, French, and Old English. This Article argues that common law has been committed to truth-seeking since its inception in the twelfth century. It did not invent this commitment. Rather, it inherited it from Anglo-Saxon law, which was much more dedicated to truth-seeking than most scholars have recognized. Like Anglo-Saxon law before it, early common law embraced what this Article calls “procedural pluralism”: the use of multiple truth-seeking procedures. So, although early common law’s commitment to seeking the truth was consistent, the way it went about truth-seeking was not. Each of the truth-seeking procedures Anglo-Saxon and early common law used had different assumptions about what law could know and how it could know it. Although much has changed, contemporary civil procedure continues to employ multiple “ways of knowing.” Understanding the roots of common law truth-seeking and the nature of procedural pluralism therefore not only provides historical grounding for ongoing debates about the role that courts can and should play in our supposedly “post-truth” era. It also reminds us that attempts to bolster the truth-seeking powers of civil litigation are not foreign to, but rather a central feature of, the “history and tradition” of common law. Recent procedural reforms, which value efficiency over truth seeking, thus risk sidelining one of common law’s foundational commitments. To maintain a commitment to truth-seeking, however, requires a clear-eyed view of the pluralistic nature of common law truth-seeking––a view this Article aims to provide.

Please email Elena Gonzalez at egonzalez@law.berkeley.edu for a copy of the paper.