Law Commons^™

Patents Absent Adversaries, Sarah R. Wasserman Rajec

Brooklyn Law Review

The adversarial system is lauded for determining the truth of claims, safeguarding procedural rights, and supporting the efficient direction of resources toward the most relevant and contested issues in a dispute. If a case proceeded to judgment with participation from only one party, it would raise concerns of justice, efficiency, accuracy, and the public interest. And yet, in a tribunal of steadily growing importance for intellectual property disputes—the International Trade Commission (ITC or Commission)—certain cases proceed without the benefit of participation from adverse parties. Following the default of named parties, administrative law judges determine the scope and validity of patent …

Miranda'S Truth: The Importance Of Adversarial Testing And Dignity In Confession Law, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The landmark decision of Miranda v. Arizona focuses on the important values of adversarial testing and human dignity. These values can be found among a constellation of values ordinarily aligned with constitutional criminal procedure cases like Miranda. The constellation also includes values such as truth-finding and equality. With the regularization of DNA analysis and the realization that a large number of innocent people have been convicted, however, there has been a recent fixation on truth-finding. Other values have been overshadowed. The myopic pursuit of truth-finding may be somewhat misguided, as certainty of truth is generally impossible. This is recognized by …

Preservation Rules In The Federal Courts Of Appeals, Ian S. Speir, Nima H. Mohebbi

The Journal of Appellate Practice and Process

No abstract provided.

Judicial Rhetoric & Lawyers' Roles, Samuel J. Levine

Samuel J. Levine

Notwithstanding the rich scholarly literature debating the proper roles of lawyers and the precise contours of lawyers’ ethical conduct, as a descriptive matter, the American legal system operates as an adversarial system, premised in part upon clear demarcations between the functions of different lawyers within the system. Broadly speaking, prosecutors have the distinct role of serving justice, which includes the duty to try to convict criminal defendants who are deserving of punishment, in a way that is consistent with both substantive and procedural justice. In contrast, private attorneys have a duty to zealously represent the best interests of their clients, …

Judicial Rhetoric & Lawyers' Roles, Samuel J. Levine

Scholarly Works

Notwithstanding the rich scholarly literature debating the proper roles of lawyers and the precise contours of lawyers’ ethical conduct, as a descriptive matter, the American legal system operates as an adversarial system, premised in part upon clear demarcations between the functions of different lawyers within the system. Broadly speaking, prosecutors have the distinct role of serving justice, which includes the duty to try to convict criminal defendants who are deserving of punishment, in a way that is consistent with both substantive and procedural justice. In contrast, private attorneys have a duty to zealously represent the best interests of their clients, …

Thomas Nast's Crusading Legal Cartoons, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

The cartoonist Thomas Nast (1840-1902) was in his heyday a political institution, with each of his pictures helping to form public opinion. His influence reached its height in the late 1860s and early 1870s with his relentless caricatures of Boss Tweed and the Tammany Hall Ring in New York City. One part of Nast’s work not often highlighted but as brilliant as the rest is his legal cartoons. Nast’s best work was done with high moral zeal, and his satire of lawyers and the legal system was no exception. His attacks grew out of frustration with the ineffectiveness of legal …

Non-Adversarial Case Resolution, Donald N. Duquette

Book Chapters

A lawyer practicing in child welfare is increasingly likely to either want to refer a case to a Non-Adversarial Case Resolution (NACR) program or to be ordered into NACR by the court. This chapter is intended to orient a lawyer to the most common forms of NACR in the United States today, prepare him or her to participate competently in that structure, and to encourage more widespread use of these promising alternatives.

International Idealism Meets Domestic-Criminal-Procedure Realism, Stephanos Bibas, William W. Burke-White

All Faculty Scholarship

Though international criminal justice has developed into a flourishing judicial system over the last two decades, scholars have neglected institutional design and procedure questions. International criminal-procedure scholarship has developed in isolation from its domestic counterpart but could learn much realism from it. Given its current focus on atrocities like genocide, international criminal law’s main purpose should be not only to inflict retribution, but also to restore wounded communities by bringing the truth to light. The international justice system needs more ideological balance, more stable career paths, and civil-service expertise. It also needs to draw on the domestic experience of federalism …

Advantages And Disadvantages Of The Adversarial System In Criminal Proceedings, William Van Caenegem

William Van Caenegem

Extract: In this sub-section the advantages and disadvantages of the adversarial system are investigated with reference to the most well-known (and closely affiliated) alternative, the (so-called) inquisitorial system prevalent in continental Europe, and in a large number of other nations, including some in our region.

The 'Trial Warrior': Applying Sun Tzu's The Art Of War To Trial Advocacy, Antonin I. Pribetic

Antonin I. Pribetic

This paper takes an interdisciplinary approach to an analysis of the Western (common law) adversarial system based upon the following theory of strategic functionalism: the form (tactics based upon procedural and evidentiary rules) is a function of the content (strategy based upon legal principles and policies and client-based remedies).Applying Jungian analysis, the following three (3) conceptual models and corresponding lawyer archetypes emerge:

1.the client-centric model (e.g. the “the “Warrior” / the “zealous advocate”);

2.the justice-centric model (e.g. the “Lover/Medial”/ the “ethical professional”); and

3.the science-centric model (e.g. the “Sovereign” or the “Magician/Trickster”/ the “knowledge technocrat”).

The paper then considers whether …

Non-Adversarial Case Resolution, Donald N. Duquette

Book Chapters

Professionals who work with children and parents have become increasingly dissatisfied with the customary reliance on the traditional adversarial system in resolving family-related disputes, including cases involving children's protection, placement, and permanent care. The power struggle in contested cases and hearings relating to child welfare may foster hostility among the parties and dissipate money, energy, and attention that could otherwise be used to solve problems cooperatively. Parties may become polarized, open communication may be discouraged, and there may be little investment in information sharing and joint problem solving. Children may suffer when adversarial tensions escalate and ameliorative services are delayed.

The Rise Of Managerial Judging In International Criminal Law, Maximo Langer

ExpressO

Abstract This article puts the procedure of the International Criminal Tribunal for the former Yugoslavia (ICTY) in a completely new and previously unexplored light. Rejecting the predominant view of ICTY procedure as a hybrid between the adversarial system of the U.S. and the inquisitorial system of civil law jurisdictions, this article shows that ICTY procedure is best described through a third procedural model that does not fit in either of the two traditional systems. This third procedural model is close to the managerial judging system that has been adopted in U.S. civil procedure. The article then explores some of the …

Yes, No, And Maybe: Informed Decision Making About Divorce Mediation In The Presence Of Domestic Violence, Nancy Ver Steegh

Faculty Scholarship

Divorce mediation in the context of domestic violence is one of the most controversial issues in family law today. Some believe that mediation is never appropriate when domestic violence has taken place, and others believe that it is always appropriate and should be mandatory. These views can be reconciled by taking a third approach, that mediation is sometimes appropriate but that this decision must be made on a case-by-case basis in consultation with the abuse survivor. The central premise of this article is that victims of domestic violence should have the opportunity to make an informed choice about which divorce …

Toward A Community Of Professionalism, Elliot L. Bien

The Journal of Appellate Practice and Process

Professionalism amongst American litigators has declined. Many jurisdictions have adopted codes of conduct in order to restore professionalism. These attempts have done little to restore professionalism. Similar adversarial systems, like England's, are admired for their professionalism. What creates this value amongst barristers is a sense of community. A similar practice should be adopted in the United States in order to restore a sense of professionalism in litigation.

Assessing The Best Interests Of The Child: Missouri Declares That A Homosexual Parent Is Not Ipso Facto Unfit For Custody, Heidi C. Doerhoff

Missouri Law Review

In formal child custody disputes, the voices of those at the center of the controversy, the children, are rarely heard.Their parents, who otherwise are presumed to act in their best interests, battle one another in legal proceedings that reward the parent who more persuasively portrays the deficiencies of the other's parenting skills. Because the children, especially the very young, have no adequate basis for making judgments about their long-term well-being, the state acts asparenspatriae while their parents are adversaries.Through its laws and decision makers, the state attempts to ensure that the final custody arrangement is guided by the best interests …

The Presumption Of Innocence: Patching The Tattered Cloak After Maryland V. Craig., Ralph H. Kohlmann

St. Mary's Law Journal

Over one hundred years ago, the United States Supreme Court recognized the importance of the presumption of innocence in a criminal justice system which is based on due process. The Court declared the presumption of innocence is “the undoubted law, axiomatic, and elementary, and its enforcements lies at the foundation … of our criminal law.” The Court’s changing view of the Sixth Amendment’s Confrontation Clause is the most recent contribution to the reduction in the practical value of the presumption of innocence. In Maryland v. Craig, the Court decided that while face-to-face confrontation forms the core of values furthered in …

Discovering Who We Are: An English Perspective On The Simpson Trial, William T. Pizzi

Publications

No abstract provided.

Lessons From Reforming Inquisitorial Systems, William T. Pizzi

Publications

No abstract provided.

Rediscovering Discovery: Washington State Physicians Insurance Exchange And Association V. Fisons Corporation, Brian J. Beck

Seattle University Law Review

Section I of this Article will present a model of the adversarial system and argue that the discovery process, although a component of that system, cannot function under the model. Section II lays out the facts of the Fisons case, the arguments presented by each side, and the court's decision. Section III discusses a survey conducted by the Author, which sought to ascertain the decision's impact on members of the Seattle bar. Utilizing survey results and observations regarding the adversarial system, the section then pinpoints some potentially troublesome issues left unresolved by the court and suggests ways to resolve them.

Neutral Partisan Lawyering And International Human Rights, Rob Atkinson

Scholarly Publications

This Essay considers the applicability of a particular model of legal ethics, neutral partisanship, to American lawyers’ representation of those who violate, or are accused of violating, international human rights. I maintain that neutral partisanship, a deficient model for American lawyers in their domestic practice, is even more problematic when applied in the international arena. The central question is this: are there limits, short of engaging in illegal conduct, that should constrain lawyers in the representation of those who violate international human rights? Neutral partisanship holds that any lawyer may, or, more strongly, must, pursue any legal end for any …

Is Altruism Possible In Lawyering?, Carrie Menkel-Meadow

Georgia State University Law Review

No abstract provided.

Refocusing The New Evidence Scholarship : A Comment On Robert S. Thompson's "Decision, Disciplined Inferences And The Adversary Process", Terence J. Anderson

Articles

No abstract provided.

Lawyers' Ethics In An Adversary System, Robert H. Kennedy

Florida State University Law Review

By Monroe H. Freedman., Indianapolis, Indiana: The Bobbs-Merrill Co., Inc. 1975. Pp. 267. $12.50.

Product Liability Law Has Come Of Age, Buell Doelle

Cleveland State Law Review

This article draws out the products liability debate and the push for settlements over litigation in court. The article discusses products liability law, and its origin in politics and unions. It also describes the attorney’s role in products liability cases, and suggests how that role should change in the future. The article concludes by looking at no-fault reparation and the adversarial system.