Professor Subrin is a self-professed traditionalist who has been one of the most forceful defenders of what I might term neo-traditional “Clarkian” litigation. By that, I mean the model of civil disputing in which litigation is a primary vehicle. More important, the litigation is based on notice pleading, broad discovery, and a preference for adjudication on the merits.
Key Subrin works over the years have focused on the historical path of the Clarkian model, which served to fuel much of the law revolution of the mid-Twentieth Century, to the “new era” of civil procedure and dispute resolution that dominated the last quarter of the Twentieth Century. Like others in what might be termed this “camp” of scholars, Subrin has long defended the Clarkian model and championed it as a source of fairness, equality and social justice. But Subrin's eclecticism distinguishes him from others, as does his current cautious embrace of mediation cum “medigation.”
In his article for this Symposium, this eclecticism reveals itself in a willingness to accept many aspects of the modern ADR movement of which he had previously been wary. But here again, Subrin is not a complete convert. Although no longer a “high church” member of the litigation synod of dispute resolution theology, neither has he become Pentecostal. Rather, he is reformist. He accepts many of the arguable benefits of ADR, particularly mediation, without making a complete conversion away from the traditional legal model. Like a religious moderate, Subrin has a view of law that combines both old and new and sees value and synergy in both. In the end, he concludes that Clarkian adjudication and nouveau ADR can indeed successfully co-exist, if only zealots from one camp do not overrun those of the other camp.
3 Nev. L.J. 305 (2003).
Stempel, Jeffrey W., "Forgetfulness, Fuzziness, Functionality, Fairness and Freedom, in Dispute Resolution" (2003). Scholarly Works. Paper 225.