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Our Adversary System: In Search of a Foundation

Published online by Cambridge University Press:  09 June 2015

Raymond A. Belliotti
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Extract

Rhetoric in praise of “our adversary system” flows freely in the prose of many legal insiders. But unexamined rhetoric, like self-praise, is of itself of little recommendation.

I will here (I) state and explain the four defining characteristics of our adversary system: (A) formal proceedings, (B) partisan presentation, (C) a neutral, passive fact finder, and (D) principles of professional responsibility. I will then (II) state, explain, and analyze critically the most common justifications advanced in defense of our adversary system: (A) the truth rationale, (B) the rights rationale, (C) the autonomy rationale, (D) the lawyer as friend rationale, (E) the ritualistic function rationale, (F) the dispute rationale, and (G) the pragmatic rationale. I conclude (III) that to date no convincing justification has been advanced which argues persuasively that our adversary system has independent value or that it serves important societal objectives better than other existing or possible legal systems.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 1 , Issue 1 , January 1988 , pp. 19 - 34
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1988

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References

1. See, e.g., Freedman, Monroe H. “Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions”, 64 Michigan L. Rev. 1469 (1966)Google Scholar and Lawyer’s Ethics in an Adversary System (Bobbs-Merrill Co., Inc., 1975); Curtis, Charles “The Ethics of Advocacy”, 4 Stanford L. Rev. 3 (1951); ABA Model Code of Professional Responsibility EC 7–19 – EC 7–39 (adopted by ABA House of Delegates 1969); ABA Model Rules of Professional Conduct, preamble (adopted by ABA House of Delegates 1983).Google Scholar

2. See, e.g., Landsman, Stephen “A Brief Survey of the Development of the Adversary System”, 44 Ohio St. L.J.. 713, at 714 (1983)Google Scholar and “The Decline of the Adversary System: How the Rhetoric of Swift and Certain Justice has affected Adjudication in American Courts”, 29 Buffalo L. Rev 487 (1980);Google Scholar Hazard, Geoffrey C. Jr. Ethics in the Practice of Law Yale U. Press, 1978) at 120–121 Google Scholar

3. Although it is sometimes claimed that principles of professional responsibility are implied by our adversary system, I claim here that such principles are constitutive of and not independent effects of the adversary framework. See, e.g. Simon, William H. “The Ideology of Advocacy: Procedural Justice and Professional Ethics”, (1978) Wisconsin L Rev. 29 at 36–37.Google Scholar

4. See, e.g., Auerbach, Jerold S. Justice Without Law? (Oxford University Press, 1983 at 4–5.Google Scholar

5. See, e.g. Baumgartner, M.P. “Law and Social Status in Colonial New Haven, 1639-1665”, 1 Research in Law and Sociology 153 (1978);Google Scholar Harley, Herbert “Justice or Litigation”, 1 Virginia L. Rev. 143, at 150 (1919);Google Scholar Cohen, Jerome A. “Chinese Mediation on the Eve of Modernization”, 54 California L. Rev. 1201 (1966);Google Scholar Auerbach, Jerome A. “Chinese Mediation on the Eve of Modernization”, 54 California L. Rev. 1201 (1966);Google Scholar Jerold S. Auerbach, supra, note 4 at 20, 47–60, 76–86, 119–120.

6. See, e.g., See, Harold “The Judiciary and Dispute Resolution in Japan: A Survey”, 10 Florida St. L. Rev. 339, at 358–359 (1982).Google Scholar

7. See, e.g., Jerold S. Auerbach, supra, note 4 at 135, 144–146; Thornton, J. Edward “Resolving Disputes Without Law”, 40 The Alabama Lawyer 104, at 106–359 (1979).Google Scholar

8. J. Edward Thornton, supra, note 7 at 107, 110.

9. While judges in our adversary system retain authority to intervene in the trial by asking questions of witnesses and summoning witnesses, they rarely do so because such intervention is viewed as antithetical to respective counsels’ adversary roles. See, e.g., Weinreb, Lloyd L. The Denial of Justice (The Free Press, 1979) at 103–104.Google Scholar

10. The three models outlined here are amended versions of those presented in D'Amato, Anthony and Eberle, Edward J. “Three Models of Legal Ethics”, 27 St. Louis U.L.J. 761 (1983).Google Scholar

11. I will avoid dwelling on another somewhat embarrassing exception often advanced to the confidentiality rule: disclosure required to collect the lawyer’s fee. See ABA Model Code of Professional Responsibility. DR 4–101 and ABA Model Rules of Professional Conduct, Rule 1.6.

12. The Model Code of Professional Responsibility was produced by a Special Committee on Evaluation of Ethical Standards of the American Bar Association in response to a perceived need for change in the statement of professional principles for lawyers. The Model Code was adopted by the ABA House of Delegates in 1969 and was subsequently adopted by the vast majority of state and federal jurisdictions. The Model of Rules of Professional Conduct were adopted by the ABA House of Delegates in 1983 after a six-year study and drafting process designed to achieve a comprehensive statement of the law governing the legal profession. To date only a few jurisdictions have adopted The Model Rules, and thus The Model Code remains the dominant professional standard for lawyers.

13. David Luban offers three such variations: (A) a three-judge panel, two of whom investigate and present the case from the perspectives of the respective litigants, but who are charged with pointing out the strengths and weaknesses of both sides; (B) an investigatory judge who presents a dossier, after her investigation of the case, to the fact-finder — thus eliminating partisan presentation; and (C) a system like our own, except where lawyers have a duty to point out facts and evidence favorable to the other side if that party is unaware of them. “The Adversary System Excuse”, in The Good Lawyer (Luban, D. ed., Rowman & Allanheld, 1983) 83, at 96–97.Google ScholarSee also, Lloyd L. Weinreb, supra, note 9 at 117–146.

14. See, e.g., Rhode, Deborah L. “Ethical Perspectives on Legal Practice”, 37 Stanford L. Rev. 589, at 589–595 (1985);CrossRefGoogle Scholar William H. Simon, supra, note 3 at 76; Schneyer, Ted “Moral Philosophy’s Standard Misconception of Legal Ethics”, (1984) Wisconsin L. Rev. 1529, at 1540;Google Scholar Goldman, Alan H. The Moral Foundations of Professional Ethics (Rowman and Littlefield, 1980) at 106;Google Scholar Held, Virginia “The Division of Moral Labor and the Role of the Lawyer” in The Good Lawyer (Luban, D. ed., Rowman & Allanheld, 1983) 60, at 69;Google Scholar Held, Virginia “Justifying Legal Practice in the Adversary System” in The Good Lawyer (Luban, D. ed., Rowman & Allanheld, 1983) 123, at 127;Google Scholar

15. See, e.g., Deborah L. Rhode, supra, note 14 at 596; Geoffrey C. Hazard, supra, note 2 at 122–128; David Luban, supra, note 13 at 95–96.

16. See, e.g., Deborah L. Rhode, supra, note 14 at 597; Galanter, Marc “Why the Haves Comes Out Ahead”, 9 Law Society Rev. 95 (1974).Google Scholar

17. See, e.g. Deborah L. Rhode, supra, note 14 at 600; Luban, David “Calming the Hearse Horse: A Philosophical Research Program for Legal Ethics”, 40 Maryland L. Rev. 451, at 469 (1981).Google Scholar

18. See, e.g., Deborah L. Rhode, supra, note 14 at 597.

19. See, Trubek, D., Sarat, A., Felstiner, W., Kritzer, H., and Grossman, J. “The Costs of Ordinary Litigation”, 31 U.C.L.A. L. Rev. 72, at 86 (1983);Google Scholar Even fewer criminal cases reach trial. For example, in New York City in 1974 only 2% of felony arrests resulted in a trial. Goldstein, Tom “Backlog of Felonies Rose Sharply Here Despite Court Drive”, New York Times (February 12, 1975) p. 1.Google Scholar

20. Landsman, Stephen The Adversary System (American Enterprise Institute, 1984) at 36–37.Google Scholar

21. See, e.g.. Stephen Landsman, supra, note 20 at 44–46; Ted Schneyer, supra, note 14 at 1540; Caplan, Arthur L. “Demoralizing Professionals” 2:2 Criminal Justice Ethics 64, at 66 (1983).Google Scholar Alan H. Goldman, supra, note 14 at 109, 126; David Luban, supra, note 13 at 97.

22. See, e.g., Alan H. Goldman, supra, note 14 at 138.

23. David Luban, supra, note 13 at 98.

24. See, e.g., Stephen, Landsman “The Decline of the Adversary System and the Changing Role of the Advocate in that System”, 18 San Diego L. Rev. 251, at 260–261 (1981);Google Scholar Ted Schneyer. supra, note 14 at 1539; Alan H. Goldman, supra, note 14 at 109, 126; Alan Donagan, supra, note 14 at 128; Geoffrey C. Hazard. supra, note 2 at 129.

25. See, e.g., Simon, William “Visions of Practice in Legal Thought”, 36 Stanford L. Rev. 469 (1984).Google Scholar

26. See, e.g., Skinner, B.F., Science and Human Behavior (The MacMillan Co., 1953)Google Scholar and Verbal Behavior (Appleton-Century-Crofts, 1957).Google Scholar

27. See, e.g., William Simon, supra, note 25 at 479–482; Hosticka, Carl J. “We Don’t Care About What Happened, We Only Care About What is Going to Happen: Lawyer-Client Negotiations of Reality”, 26 Social Problems 599 (1979).Google Scholar

28. See, e.g., Alan Donagan, supra, note 14 at 129–130.

29. See e.g.. Alan H. Goldman, supra, note 14 at 117–126.

30. Supra, note 24 generally.

31. See, e.g., Hosticka, Gary “The Metaphysics of American Law”, 73 California L. Rev 1151, at 1156, 1159 (1985).Google Scholar

32. See, e.g., Derrida, Jacques Speech and Phenomena and other essays on Husserl’s Theory of Signs (D. Allison Trans., 1973);Google Scholar Foucault, Michel The Archeology of Knowledge (A. Sheridan Smith Trans., 1972);Google Scholar Rorty, Richard Philosophy and the Mirror of Nature (Princeton U. Press, 1979);Google Scholar Unger, Roberto Passion (The Free Press, 1984).Google Scholar

33. Gary Peller, supra, note 31 at 1181; James, Boyle “The Politics of Reason: Critical Legal Theory and Local Social Thought”, 133 U. of Pa. L. Rev 685 (1985).Google Scholar

34. See, e.g., Foucault, Michel The Order of Things: An Archeology of the Human Sciences (Pantheon Books, 1970).Google Scholar

35. Fried, Charles “The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation”, 85 Yale L.J. 1060, at 1066–1075 (1976).Google Scholar An account that is in some ways similar is expressed by Shaffer, Thomas On Being a Christian and a Lawyer (Brigham Young University Press, 1981) at 35–104.Google Scholar

36. The following are a few of Frieds most strident critics: Dauer, Edward A. and Left, Arthur A. “Correspondence: The Lawyer as Friend”, 86 Yale L.J. 573 (1977).Google Scholar William Simon, supra, note 3 at 106–113; David Luban, supra, note 13 at 105; Alan Donagan, supra, note 14 at 128. Some of the criticisms expressed in the text were inspired by these authors.

37. Fried, Charles “Author’s Reply”, 86 Yale L.J. 584, at 586 (1977).Google Scholar

38. I do not suggest that Fried intends his argument as a justification of the adversary system. Rather, he introduces it for the limited purpose of arguing that a “good lawyer” can be a “good person”. Thus, the text accompanying and following this footnote is not a criticism of Fried. It is only intended to manifest that Fried's argument cannot provide a justification of the adversary system.

39. See, e.g., William Simon, supra, note 3 at 92–112; Geoffrey Hazard, supra, note 2 at 122, 134.

40. See, e.g., Herbert, McClosky “Consensus and Ideology in American Politics” 58 Am. Pol. Sci. Rev. 361 (1964);Google Scholar Austin, Sarat “Studying American Legal Culture: An Assessment of Survey Evidence” 11 Law & Soc. Rev. 427 (1977);Google Scholar Veblan, T. The Theory of the Leisure Class (Modern Library, 1934) at 230–235; Lloyd L. Weinreb, supra, note 9, at 112.Google Scholar

41. See, e.g., William Simon, supra, note 3 at 96–99; Lloyd L. Weinreb, supra, note 9 at 113–114.

42. See, e.g., Stephen Landsman, supra, note 20 at 35–40.

43. Supra, note 40

44. David Luban, supra, note 13 at 111–113.

45. Id., at 112.

46. Id., at 117–118.

47. See, e.g., Unger, Roberto “The Critical Legal Studies Movement” 96 Harvard L. Rev. 561 (1983)Google Scholar; Griffiths, John “Ideology in Criminal Procedure” 79 Yale L.J. 359 (1970);Google Scholar Lloyd L. Weinreb, supra, note 9.

48. I acknowledge that work on this essay was aided by a grant provided by NEH Summer Seminars for College Teachers.