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It must be distressing to preside over the rape of Truth in the courtroom. At the altar of justice, before the Judge's very eyes, the atrocity is perpetrated in a casual, routine manner bespeaking long and regular usage. And the rapists are people who proclaim themselves honorable and devoted to the victim. Apart from the occasional nostalgic ex-litigator who relishes the spectacle, the judicial witness may be tempted, understandably enough, to take a more heroic role. But if the judge breaks with customary passivity, vaulting the bench and riding to the rescue, his merciful mission often turns out to be a lame and embarrassing sortie. It's enough to raise a judicial hackle or two. Judge Frankel's hackles are as stable as most, to my knowledge. Yet they are clearly ascending. Their rise invites us to revisit an old acquaintance: the adversary myth. Our beloved dialectic model of litigation offers much in the way of healthful mental exercise, he suggests, but the "Truth" that emerges may be more synthetic than real. For the collision of opponents is better designed to find an athletic victor than to search for Truth. Still, it seems to me that properly directed and purged of obvious abuses, the juxtaposition of two contrary perspectives, the impact of challenge and counter-proof, often discloses to a neutral intelligence the most likely structure of Truth. Thus, at least in those instances (which I may regard as more common than does Judge Frankel) where neither side knows certainly the actual contours of a past occurrence, I conclude that the adversarial encounter, for all its hazards, serves as one of the better methods of reconstruction. Venturing into the causes of Judge Frankel's dissatisfaction and appraising his call for major surgery on the system, it may

The Advocate, the Truth, and Judicial Hackles: A Reaction to Judge Frankel's Idea