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NCJ Number: 127475 Find in a Library
Title: Why Have an Adversary System? (From Lawyers and Justice: An Ethical Study, P 67-103, 1988, David Luban -- See NCJ-127474)
Author(s): D Luban
Date Published: 1988
Page Count: 37
Sponsoring Agency: Princeton University Press
Princeton, NJ 08540
Sale Source: Princeton University Press
41 William Street
Princeton, NJ 08540
United States of America
Type: Research (Theoretical)
Language: English
Country: United States of America
Annotation: This analysis of common rationales for the adversary system of justice in the United States concludes that despite the weaknesses of common arguments supporting it, the system should be retained for pragmatic reasons, just as West Germany should retain its inquisitorial system.
Abstract: Supporters of the adversary system argue that it is the best way of determining trust and defending litigants' legal rights and that it is intrinsically good in that it grants every litigant a voice in the legal process and establishes valuable attorney-client relationships. These arguments are questionable, but the system should be retained because it works as well as any system, some adjudicatory system is necessary, and changing the system would be traumatic. In the German system, the presiding judge absorbs the role of the lawyers, makes many decisions regarding witnesses and the charges, and asks most of the questions. Few exclusionary rules exist. German students learn law from the standpoint of the judge and receive set fees regardless of a case's outcome. This system is more efficient, competent, and professional than the American system. For pragmatic reasons, each country should keep its current system. Footnotes
Main Term(s): Accusatorial systems
Index Term(s): Germany; Inquisitorial systems; US/foreign comparisons
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