This article argues that the uniquely adversarial nature of the United States litigation system, rooted in the medieval English system of "trial by battle," has replicated itself in almost all aspects of American society, distinguishing the United States from even its common law counterparts that shared the genesis of their legal systems in English "trial by battle." This "trial by battle" is often characterized in the context of speech by terms such as the 'marketplace of ideas," or in the context of economics by terms such as "the law of the jungle.," Even resolution of basic Constitutional concepts are subject to battles between parties, rather than a proactive determination by a Constitutional Court as can be found in many other legal systems. Thus, American society is unique from all other industrialized nations in the extent to which it employs adversarial techniques to resolve conflicts in the areas of contract law, criminal law, constitutional law, labor law, and economic and social policy, in addition to its legal system. This article suggests that the implications of this emphasis on procedure over substance are profound, and that the shibboleth of "procedural fairness" invoked to justify disparate substantive outcomes may be more illusory than real.
Jim Wilets & Areto A. Imoukhuede, A Critique of the Uniquely Adversarial Nature of the U.S. Legal, Economic and Political System and Its Implications for Reinforcing Existing Power Hierarchies, 20 U. PA. J.L. & Soc. CHANGE 341 (2017).