Thesis (Preventive Law), Antithesis (Adversarial Process), Synthesis (Settlement, ADR): A Comment on Nyhard and Dauer

In terms of the Nyhart-Dauer article, the goal which is to be attained is the commercial exploitation of the coastal zone and continental shelf. \u27 The legal system aids the accomplishment of that goal by permitting parties to enter into contracts which define the measure of present exchange and provide the standards by which executory performance will later be judged... 2 The goal is achieved by performances in accord with creative arrangements developed in such a way that their constituents will be most likely to accept and adhere to the undertakings to which they are committed.3 It is performance that counts. In an ideal, and often practical arrangement, performance is achieved without dispute and hence there is no need for concern about dispute resolution. But saying this does not eliminate a legal structure. Rather, it should be recognized that the initial function of the legal structure is to enable parties to achieve their goal. This is a starting point to the jurisprudence of preventive law

Prefatory Remark

The Devitt Committee Report recommends that the American Bar Association re-examine its accreditation standards with a view towards requiring each law school to provide trial advocacy training. In my opinion, it is improper to emphasize trial advocacy to the exclusion of other means of solving disputes. The Devitt Report gives not the slightest hint of or reference to negotiated settlements, arbitration or mediation as methods to assist in settling disagreements. The Committee, by apparently accepting without dissent the Report\u27s stated objective, ignored the broader social purposes to be served by requiring law schools to emphasize skills training in general