Robert A. Kagan coined the term “adversarial legalism” to mean policymaking, policy implementation, and dispute resolution through lawyer-dominated litigation. Adversarial legalism involves decisionmaking institutions with fragmented authority and relatively weak hierarchical control, features which lead to a costly system and legal uncertainty. It often provides an unfair method of meeting the public’s demand for justice and protection, generating both social benefits and costs. Although there are many virtues to adversarial legalism, it has serious deficiencies as a system for meeting the day-to-day challenge of providing justice in contemporary society. Appropriate Dispute Resolution (ADR)—such as negotiation, early neutral evaluation, mediation, and arbitration—is one way out of excessive adversarial legalism. The challenge is to determine whether adversarial legalism or some other appropriate form of dispute resolution will provide the right process, the right remedy, and the fairest and most just result in a given case.
Dorothy W. Nelson,
Which Way to True Justice?—Appropriate Dispute Resolution (ADR) and Adversarial Legalism,
83 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol83/iss1/6