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Abstract

The ancient practice of trial by combat was abandoned hundreds of years ago and has never been employed in America. Yet this has not stopped litigants and others from demanding trial by combat—a tactic which, while infrequent, implicates deeper questions of the history of American law. In the past several years, several high-profile demands for trial by combat have prompted media attention and caused several commentators to suggest that trial by combat may be an option for civil litigants. Most coverage and commentary only focuses on each instance of trial by combat as they arise—without attention to other examples of demands or references to trial by combat in modern American law.

No more. This Article provides a systematic discussion of modern demands and references to trial by combat in American courts. From cases in the early 1800s, to Rudy Giuliani’s infamous call for trial by combat on January 6, 2021, this Article surveys demands and mentions of trial by combat, and how courts have treated such demands. This Article examines what motivates parties who seek trial by combat, noting that the popular television series, Game of Thrones likely plays a role. This Article then examines parties’ legal arguments for trial by combat, finding that they ignore relevant precedents and take a skewed view of history.

Recent demands for trial by combat prompt widespread media coverage—coverage which often suggests that trial by combat may be a possibility for litigants. This Article provides historic context for this discussion and, following a systematic review of cases involving or referencing trial by combat, concludes that such demands are not only legally baseless, but that they almost invariably will harm the demanding party’s case. Still, this Article does not count out the possibility that parties may privately contract for a dispute resolution method that mirrors aspects of trial by combat—particularly if such a contract is crafted in a manner that puts both parties on an equal playing field and minimizes the chances of physical harm. While physical trial by combat between parties or champions may be a historic relic, the possibility for parties to agree to virtual trial by combat or similar dispute resolutions remains. And even though demands for trial by combat in court are likely to fail, this has not stopped litigants from making them for centuries, and parties will likely continue to do so in the decades and centuries to come.

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