Adversarial Jurisprudence: Legal Education and the Demise of the Consensual Norm



This paper examines the rise in Supreme Court dissent and concurrence rates, testing whether modern legal education contributes to the abandonment of the consensual norm. Scholars have pointed out that changing external conditions, changing enforcement mechanisms, and changing values may alter the conceptualization of a norm. Modern legal education trains lawyers to apply case law to conflicting arguments creatively in pursuit of desired outcomes. This paper tests the hypothesis that modern legal education has indoctrinated judges to freely pursue adversarial positions, supported by differing interpretations of precedent. This behavior would manifest itself in greater rates of dissents and special concurrences. Statistical tests examining Supreme Court decisions from 1801 through 1991 strongly support the hypothesis.