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“Future of the Adversary System.”

Schulhofer, S.J.
June 4, 2015

Source: (1986) Justice Quarterly 3(1):83-93.

This essay challenges the assumptions that the American legal system is plagued by too many trials, too much adversarial behavior and too much law. The author comments briefly on these broad claims and then consider more specifically their application to the criminal justice system, where concern about adversarial behavior is most strikingly out of touch with reality. In criminal justice we already have a system dominated by cooperative, nonadversarial relationships, and in nearly all cases dispositions mutually satisfactory to the parties are achieved by negotiation or by a form of mediation under the informal auspices of a judge. What we need in criminal justice is not more cooperation but a return to formal, vigorously adversarial procedures.


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