36 Pages Posted: 19 Dec 2003
The adversary system is the nearly unquestioned ideology that animates civil and criminal justice in the U.S. Under the adversary system, lawyers control the trial. Judge have little to do except rule on legal issues and evidentiary objections and pound their gavels. The objective of the adversary system is to provide procedural justice and to find "trial truth." The goal is not to provide substantive justice or to discover the real truth about what happened.
This paper asks why the U.S. is committed to the adversary ideology. To some extent the commitment arises out of ignorance of alternatives and reliance on tradition. It also derives from broadly shared commitment to individual autonomy and laissez faire capitalism. Distrust of judges and other bureaucrats is certainly a major factor. Often, distrust of American judges is entirely warranted.
This paper suggests an additional reason for our commitment to the adversarial ideology: constant exposure to popular culture models. To some degree, we all sit at the feet of our master trial practice teacher, the immortal Perry Mason. Mason trained us to believe that only lawyer cross-examination could discover the truth. Countless TV series and films have reinforced this message. The model requires lawyers to be in control and judges to get out of the way. A lifetime of pop culture conditioning in the glories of the adversary system makes it impossible for most Americans to consider alternatives.
Keywords: adversary system, popular culture, judicial system, trial courts
Suggested Citation: Suggested Citation
Asimow, Michael, Popular Culture and the American Adversarial Ideology. LAW AND POPULAR CULTURE, Michael Freeman, ed., Oxford University Press, 2004. Available at SSRN: https://ssrn.com/abstract=481282 or http://dx.doi.org/10.2139/ssrn.481282