NCJ Number
83816
Date Published
1982
Length
13 pages
Annotation
Adversariness in civil proceedings is waning because of criticism of the system from both the right and the left and because of social forces; this may well pose a threat to the legitimacy of judging.
Abstract
Business interests (other than creditors and landlords) have lost faith in the judicial system, because it does not provide the desired climate of legal stability with speedy, inexpensive, and predictable decisions; consequently, corporations prefer to settle disputes through commercial arbitration and negotiation. The left favors alternative dispute resolution mechanisms because of its belief that the adversarial system favors the rich and promotes a mindless formalism at the expense of justice. Further, since 1960, the absolute number of cases filed has dramatically increased, forcing procedural changes to facilitate efficiency, such as the informal pretrial conference and the use of summary dispositions. The increased complexity of cases and interest group pressure have also forced important modifications in the adversarial model. More profoundly, changes in adjudicatory forms reflect changes in U.S. society, which has moved from the prevalence of disputes between equals to disputes between organizations and individuals, forcing judges to offset the imbalance of power. The adversary system has also been undermined by a change in the competitive, winner-take-all attitude that has provided the dynamic of the adversarial system. Still, the adversarial model maintains the advantage of giving the appearance of a neutral decisionmaker and equality between the contending parties that serves the interests of justice. The eroding of this model in favor of alternative models may undermine the public's perception that the judicial system is impartial and objective in its renderings. Three notes and 38 references are provided.