Abstract
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.
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