¶ 42. {dissenting). Wisconsin Stat. § 971.08(2) provides remedies when a circuit court fails to give a defendant the warnings about the immigration consequences resulting from a guilty or no contest plea.1 It provides, in relevant part, as follows:
If a court fails to advise a defendant as required by sub. (l)(c) and a defendant later shows that the plea is likely to result in the defendant's deportation, exclusion from admission to this country or denial of naturalization, the court on the defendant's motion shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea. (Emphases added.)
¶ 43. At one point, the majority recites these legislative pleading requirements correctly. The majority explains that the defendant's motion must allege: "(1) that the circuit court ’fail[ed] to advise [the] defendant [of the deportation consequences of the defendant's plea] as required by [§ 971.08(l)(c)]'; and (2) that the defendant's 'plea is likely to result in the defendant's deportation, exclusion from admission to this country!,] or denial of naturalization." Majority op., ¶ 23.
*28¶ 44. Thereafter the majority opinion transmutes the statutory pleading requirements without the benefit of briefs or argument by the State or Negrete and applies them retroactively to Negrete.
¶ 45. I dissent because the majority opinion improperly applies the first statutory pleading requirement and creates a second, brand-new pleading requirement for a motion to withdraw a guilty or no contest plea under Wis. Stat. § 971.08(2) when a circuit court fails to give a defendant the warnings.
¶ 46. With respect to the first pleading requirement — allege that the circuit court failed to advise the defendant of immigration consequences— the majority (adopting the State's argument) ignores and misconstrues the thrust of Negrete's motion and supporting affidavit.
¶ 47. With respect to the second pleading requirement — allege that the plea is likely to result in immigration consequences — the majority deviates from the text of the statute and sets forth several pleading requirements not in the text of the statute. These new-for-2012-judicially-created pleading requirements, not grounded in the text of the statute and not briefed or argued by the State or Negrete, are then unfairly applied retroactively to Negrete's motion filed in 2010. Majority op., ¶ 3.2
*29¶ 48. The majority's application of both statutory pleading requirements is incredibly unjust to the defendant. In all contexts, courts should strive to remove technical obstacles and enable parties to litigate their claims on the merits. But in the context of the present case, with its dramatic consequences to Negrete, the court should be particularly concerned with ensuring that both Negrete and the State have a fair opportunity to make their claims. As the United States Supreme Court recently recognized, "changes to our immigration law have dramatically raised the stakes of a noncitizen's criminal conviction. . . . [Djeportation is an integral part — indeed, sometimes the most important part — of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes."3
¶ 49. Instead, the majority has improperly transformed Wis. Stat. § 971.08(l)(c) and (2) into a "gotcha" game. The majority is out of step with the "entire tenor of modern law," which "is to prevent the avoidance of adjudication on the merits by resort to dependency on non-prejudicial and non-jurisdictional technicalities."4 *30The majority creates one roadblock after another, always erring on the side of denying the defendant the minimal remedies of an opportunity to have an evidentiary hearing5 or to re-plead.
¶ 50. In sum, the majority unreasonably ignores and misconstrues the thrust of Negrete's motion and *31supporting affidavit. In addition, the majority deviates from the statutory text and sets forth new pleading requirements not found in Wis. Stat. § 971.08(2). It is extremely unfair for the majority to apply these new-for-2012-judicially-created pleading requirements retroactively to Negrete's motion, which was filed in 2010.
I
¶ 51. With regard to the first pleading requirement, the majority concludes that Negrete fails to allege sufficient material facts that, if true, would entitle him to relief, because "Negrete has failed to sufficiently allege that the plea-accepting court did not tell him of the potential immigration consequences of his plea." Majority op., ¶ 3.
¶ 52. I disagree with the majority. Negrete's motion and affidavit must be read in their entirety and together, which the majority fails to do. The motion and the affidavit were both drafted by Negrete's attorney and filed together. Together they state that Negrete unwittingly entered a plea without being informed of and understanding the immigration consequences of such a plea.6
¶ 53. Negrete's motion explicitly states that "during the course of the plea colloquy the court did not inform Negrete, on the record, of the immigration consequences of his guilty plea." The motion further states that, if given the opportunity, Negrete "will *32testify that he did not know of the immigration consequences of his guilty plea; and, further, if he had known that he would be subject to deportation as a result of his plea he would not have entered the guilty plea." Both of these statements, if true, would entitle Negrete to relief.
¶ 54. In Negrete's affidavit filed simultaneously with his motion, Negrete avers that he "do[es] not recall the court, or [his] lawyer, ever telling [him] of this consequence of the plea." The majority describes this statement as "equivocal" and "inconclusive." Majority op., ¶¶ 6, 25.7 But the language in the affidavit about the failure to recall cannot negate the very next sentence in the affidavit, which does not equivocate at all: "Had I known of this consequence, I would not have entered the guilty plea." This sentence in the affidavit is consistent with Negrete's allegation in his motion that "the court did not inform Negrete, on the record, of the immigration consequences of his guilty plea."8
*33¶ 55. The majority asserts that "a defendant must affirmatively assert that the plea-accepting court did not tell the defendant of the potential immigration consequences of his plea." Majority op., ¶ 24. Negrete did just that in his motion and affidavit.
¶ 56. To reach its contrary conclusion, the majority (and the State) pull out of context and place undue weight on a single phrase in the affidavit: "I do not recall." Majority op., ¶ 25. In light of the entirety of Negrete's statements in the motion and affidavit, the majority's reading is unreasonable and unfair.
¶ 57. What could Negrete have alleged that would satisfy the majority? Apparently the majority would prefer that Negrete state that, although 18 years have elapsed, he remembers the plea colloquy very, very clearly and can state with absolute certainty that the circuit court did not give him the warnings required by the statute.9 This is an unrealistic request that will only encourage "self-serving" and untrustworthy statements.10
¶ 58. Everyone agrees that it is unfortunate that there is no transcript of Negrete's 1992 plea hearing. But whose fault is that? If there is "fault," it lies *34somewhere in the judicial system, not with Negrete. Yet, the majority opinion places the burden caused by the missing transcript entirely on Negrete. Majority op., ¶¶ 29-33. Negrete is asked to prove by clear and convincing evidence that the warnings were not given despite not having had the opportunity to put forth any evidence beyond his written assertions that the required warnings were not given and he did not know the consequences of his plea. The majority places an insurmountable hurdle in front of Negrete.
¶ 59. The majority puts heavy emphasis on the plea questionnaire to decide the present case against Negrete, but the fact that Negrete initialed each of the 23 items on the four-page questionnaire (in which the attorney filled in any required information), including signifying that he was advised that a guilty plea "may result" in deportation, does not supplant the statutory requirement of a colloquy on the record.11
¶ 60. Our cases are clear that if there were a transcript showing a defective plea colloquy, the plea questionnaire would not suffice to prevent an eviden*35tiary hearing. The court has held that a plea questionnaire cannot substitute for a personal, in-court, on-the-record colloquy.12 Yet in the instant case the majority allows the plea questionnaire to cure an alleged defect in a non-existent transcript. The majority's reasoning and result do not comport with our precedent.
¶ 61. I conclude that Negrete's motion and affidavit, read in their entirety and together, allege sufficient facts to support Negrete's claim that his plea colloquy was deficient. Negrete's claim, if true, would entitle him to relief.13
*36II
¶ 62. Wisconsin Stat. § 971.08(2) also requires that the defendant show "that the plea is likely to result in the defendant's deportation, exclusion from admission to this country or denial of naturalization."
¶ 63. Negrete's motion stated the offense for which he entered the plea (second degree sexual assault) and then asserted that he is "now the subject of deportation proceedings."
¶ 64. Neither the State nor Negrete argued that the motion or affidavit was defective with regard to the requirement that the defendant state that the plea is "likely to result in the defendant's deportation." Both the State and Negrete obviously read the motion and affidavit as declaring that Negrete's conviction for second degree sexual assault was the reason he was likely to be subject to deportation proceedings. The State's and Negrete's reading of the motion and affidavit is reasonable and should be accepted for purposes of interpreting and testing the sufficiency of Negrete's motion.
¶ 65. Yet, Negrete's motion does not satisfy the majority.
¶ 66. First, the majority opinion declares that a defendant's motion must "allege facts demonstrating a causal nexus between the entry of the guilty or no contest plea at issue and the federal government's likely institution of adverse immigration actions consistent with § 971.08(l)(c)." Majority op., ¶ 26.
¶ 67. It is unnecessary for the majority to replace the statutory language, which is that the defendant show "that the plea is likely to result in the defendant's *37deportation, exclusion from admission to this country or denial of naturalization." Wis. Stat. § 971.08(l)(c). Further, it is not clear that the majority's replacement language fits all the circumstances that come within the statute. For example, must a defendant show "the federal government's likely institution of adverse immigration actions" in order to demonstrate that the plea is likely to result in the defendant's denial of naturalization?
¶ 68. The majority goes on to depart further from the text of the statute and sets forth specific ways in which a defendant may satisfy the majority's rephrasing of the statutory pleading requirement. See majority op., ¶¶ 26-27.
¶ 69. The majority sums up the newly created requirements as follows:
[A] defendant may set forth the crime of conviction, the applicable federal statutes establishing his potential deportability, and those facts admitted in his plea that bring his crime within the federal statutes. In so doing, a defendant may submit some written notification that the defendant has received from a federal agent that imports adverse immigration consequences because of the plea that was entered; or, a defendant may narrate verbal communications that the defendant has had with a federal agent advising that adverse immigration consequences were likely and that such consequences were tied to the crime for which the plea was entered.14
¶ 70. The majority opinion has, without question, rewritten Wis. Stat. § 971.08(2).
¶ 71. The statute says nothing about a defendant setting forth the crime for which he was convicted. The statute says nothing about reciting the applicable federal statutes. The statute says nothing about reciting a legal argument that the facts admitted in his plea *38conform to the federal deportation statutes.15 The statute says nothing about submitting written notifications or narrating verbal communications.
¶ 72. Some of these details would seem more fitting as legal argument in a memorandum in support of a motion or a pleading, as opposed to appearing in the motion or pleading itself.
¶ 73. Although the majority uses the word "may" in describing its new requirements, the result for the defendant in the present case makes clear that, in fact, a defendant must meet the majority's new requirements.
¶ 74. The statute requires the defendant to allege merely that "the plea is likely to result in the defendant's deportation" (emphasis added). The majority has transformed the statute and now requires the defendant to allege something much more than "likely." The majority reads a more absolute requirement into the statute, namely, that the defendant has already been notified that he or she will be deported.16
*39¶ 75. There are several ways a defendant may show that the plea is "likely to result in the defendant's deportation," at the appropriate stage of the proceedings. The majority's extremely detailed pleading requirements do not appear in the statute and in all likelihood are not the only ways in which a defendant may satisfy the plain language of the statute.
¶ 76. No case prior to today has interpreted Wis. Stat. § 971.08(2) to require a defendant to satisfy any of the specific, detailed requirements set forth by the majority opinion. Negrete did not have notice of the new judicially created "refer-to-and-explain-the-federal-deportation-statutes" or the "submit-written-notification-or-narrate-verbal-communications" pleading requirements.
¶ 77. If I were to agree with the new pleading requirements created by the majority, and I do not, I would allow the defendant to re-plead. The majority's retroactive application of its 2012 newly created pleading requirements, which are not supported by the statute, offends the most basic sense of fair play and due process.
¶ 78. Negrete never got notice of these new pleading requirements. Negrete never had a chance to comply with these requirements. If the court adopts new pleading requirements, it should, at a minimum, give a defendant notice and an opportunity to re-plead under the new requirements.
¶ 79. The majority's retroactive application approach also conflicts with Wis. Stat. § 802.09, which embodies Wisconsin's tradition of liberal amendment of *40pleadings.17 Wisconsin Stat. § 802.09 provides that leave to amend pleadings "shall be freely given at any stage of the action when justice so requires."18 "[Wisconsin Stat. § 802.09] is intended to facilitate the disposition of litigation on the merits and to subordinate the importance of pleadings. It provides maximum opportunity for each claim to be decided on its merits rather than on procedural technicalities."19
¶ 80. Moreover, the majority opinion violates a basic rule of appellate review by bypassing the adversary process and raising and deciding a question on its own.20 The majority has gone well beyond the parties' *41arguments and has concocted numerous ways in which Negrete's motion is defective. While the State, like the majority, did fixate on the words "do not recall" in Negrete's affidavit in support of his motion, the State did not raise the "nexus" issue that the majority treats as equally fatal to Negrete's motion. The "nexus" issue, which the majority discusses and analyzes in detail, has not been briefed by either the State or Negrete.
¶ 81. The motion and affidavit, in my opinion, satisfy the requirement in Wis. Stat. § 971.08(2) that "the plea is likely to result in the defendant's deportation." If the majority insists on rewriting the statute, Negrete should be given a chance to amend his 2010 *42motion to meet the majority's new judicially created 2012 pleading requirements.
¶ 82. For the reasons set forth, I conclude, based on the plain text of Wis. Stat. § 971.08(2), that Negrete's motion in the present case was sufficient to earn Negrete an opportunity for an evidentiary hearing or for re-pleading.
¶ 83. For the reasons set forth, I dissent.
¶ 84. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.
Wisconsin Stat. § 971.08(l)(c) sets forth as follows what the circuit court is to state in addressing the defendant about immigration consequences:
971.08(1) Before the court accepts a plea of guilty or no contest, it shall do all of the following:
(c) Address the defendant personally and advise the defendant as follows: "If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial or naturalization, under federal law."
In the circuit court and court of appeals, the State argued that the doctrine of laches prevented the defendant from seeking to withdraw his plea. The State abandoned that argument in this court. The Wisconsin Association of Criminal Defense Attorneys nevertheless filed a non-party brief addressing the doctrine of laches, arguing that the doctrine can never apply to motions under Wis. Stat. § 971.08(2).
In the circuit court and court of appeals, the state also argued that any error made by the circuit court in taking the *29defendant's plea was harmless. Before this court, the state primarily focuses on the sufficiency of the defendant's motion, not on harmless error. The circuit court and court of appeals decided the present case on harmless error, not on whether the allegations of the motion were facially sufficient.
Padilla v. Kentucky, 130 S. Ct. 1473, 1480 (2010) (footnote omitted).
Cruz v. DILHR, 81 Wis. 2d 442, 449, 260 N.W.2d 692 (1978).
Wisconsin courts " 'reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome ....'" Canadian Pac. Ltd. v. Omark-Prentice Hydraulics, Inc., 86 Wis. 2d 369, 373, 272 N.W.2d 407 (Ct. App. 1978) (quoting Conley v. Gibson, 355 U.S. 41, 48 (1957)).
*30See also Wis. Pub. Serv. Corp. v. Arby Constr., 2012 WI 87, ¶ 36, 342 Wis. 2d 544, 818 N.W.2d 863.
Such a hearing would not be a pointless exercise, although Negrete's lawyer and the court reporter are both deceased. For one thing, the circuit court judge who took the plea (or perhaps another judge or court staff person) could testify regarding the judge's practice regarding the warnings required by Wis. Stat. § 971.08(l)(c).
We know that numerous circuit court judges have not complied with the requirements of Wis. Stat. § 971.08(1)(c). See, e.g., State v. Lagundoye, 2004 WI 4, ¶ 44, 268 Wis. 2d 77, 674 N.W.2d 526 (Judge Diane S. Sykes and Judge Elsa C. Lamelas each failed to provide the required warnings); State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1 (Judge Donald R. Zuidmulder failed to provide the required warnings); State v. Vang, 328 Wis. 2d 251, 789 N.W.2d 115 (Ct. App. 2010) (Judge Mark A. Warpinski, Jr. failed to provide the required warnings); State v. Shampo, No. 03-0162-CR, unpublished slip op. (Wis. Ct. App. Sept. 3, 2003) (Judge Thomas G. Grover failed to provide the required warnings); State v. Garcia, 2000 WI App 81, 234 Wis. 2d 304, 610 N.W.2d 180 (Judge William H. Carver failed to provide the required warnings); State v. Lopez, 196 Wis. 2d 725, 539 N.W.2d 700 (Ct. App. 1995) (Judge Dennis J. Flynn failed to provide required warnings); State v. Issa, 186 Wis. 2d 199, 519 N.W.2d 741 (Ct. App. 1994) (Judge Victor Manion failed to provide the required warnings); State v. Chavez, 175 Wis. 2d 366, 498 N.W.2d 887 (Ct. App. 1993) (Judge Richard G. Greenwood failed to provide the required warnings).
An evidentiary hearing could also more clearly establish the "nexus" to satisfy the stringent new requirements created by the majority opinion.
The legislative history of 1985 Wis. Act 252, which created Wis. Stat. § 971.08(2), "indicates that the legislature sought to alleviate the hardship and unfairness involved when an alien unwittingly pleads guilty or no contest to a charge without being informed of the consequences of such a plea." Chavez, 175 Wis. 2d at 371.
Negrete and the State dispute the meaning to be given this "I do not recall" language. Each gives a reasonable meaning to the phrase.
The majority's claim that "evidentiary facts stated in an affidavit supplant allegations in a pleading" is an incomplete and incorrect statement of the law. Majority op., ¶ 35. The rule of law is that in deciding a motion for summary judgment and determining whether there is a genuine issue of material fact, a court will view the facts stated in an affidavit as supplanting or taking precedence over facts stated in a motion for summary judgment or in a pleading to the extent that the facts stated in the affidavit are inconsistent or contrary to those in the motion or pleading. See Moutry v. Am. Mut. Liab. Ins. Co., 35 Wis. 2d 652, 659, 151 N.W.2d 630 (1967).
Even assuming this summary judgment rule is applicable in the present case, the facts stated in Negrete's affidavit are not inconsistent with or contrary to those stated in his motion.
It is not unusual for a long time to elapse between the crime and the threat of deportation. See Cody Harris, Comment, A Problem of Proof: How Routine Destruction of Court Records Routinely Destroys A Statutory Remedy, 59 Stan. L. Rev. 1791, 1805 (2007) ("[I]t often takes more than a decade for the INS (now ICE) to initiate deportation proceedings.").
See Harris, supra note 9, at 1807-09 (compiling California cases that have recognized the problems with such statements). See also id. at 1812 ("[I]t is difficult to imagine a scenario in which a defendant could ever prevail... without recourse to a plea hearing transcript, rending [sicl the remedy provided under the statute illusory for a significant number of defendants.").
See State v. Hoppe, 2009 WI 41, ¶¶ 30-33, 317 Wis. 2d 161, 765 N.W.2d 794:
A circuit court may use the completed Plea Questionnaire/Waiver of Rights Form when discharging its plea colloquy duties. . ..
A circuit court may not, however, rely entirely on the Plea Questionnaire/Waiver of Rights Form as a substitute for a substantive in-court plea colloquy....
Although we do not require a circuit court to follow inflexible guidelines when conducting a plea hearing, the Form cannot substitute for a personal, in-court, on-the-record plea colloquy between the circuit court and a defendant.
See also Issa, 186 Wis. 2d at 208-09 (plea questionnaire admitting being given immigration warnings does not satisfy the requirements of Wis. Stat. § 971.08(1)(c)).
See Hoppe, 317 Wis. 2d 161, ¶ 47; Issa, 186 Wis. 2d at 208-09.
In California, a state the majority uses as support, majority op., ¶ 24, when there is no transcript or other court documentation regarding the plea hearing, a statute provides that the defendant is "presumed not to have received the required advisement." The cases conclude that the presumption is rebut-table. The prosecution bears "the burden to prove by a preponderance of the evidence that the required advisements were given." People v. Arriaga, 133 Cal. Rptr. 3d 807, 813 (2011) (citing People v. Dubon, 108 Cal. Rptr. 2d 914 (2001)).
The majority opinion uses an inappropriate analytical framework. It erroneously concludes that because Bangert does not apply, Bentley automatically does. See State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986); State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996).
The State's brief argues that the defendant's motion fails under either the Bangert framework or the Bentley framework.
The decision of the court of appeals cited only Bangert.
Contrary to the majority's assertion, however, the instant case is neither a Bangert nor a Bentley case. It does not fit neatly into either framework. It is not a Bangert case because there is no transcript. And it is not a Bentley case because the defendant does not contend that there was an extrinsic cause for the defective plea other than a defective colloquy.
*36By applying the Bentley analysis, the majority has forced a square peg into a round hole.
Majority op., ¶ 37.
Fortunately the majority opinion does not go on to declare, without briefs, the meaning of the phrase "aggravated felony" in the federal deportation statutes. Majority op., ¶ 27 n.8.
For a discussion of the expanding meaning of "aggravated felony" over the years to include many garden variety state law crimes, see Harris, supra note 9, at 1796-98. For a discussion of recent cases in which second degree sexual assaults have been found to be crimes of violence and therefore aggravated felonies under the immigration statute, see Elizabeth D. Lauzon, What Constitutes "Aggravated Felony" for Which Alien Can be Deported or Removed Under § 237(a)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.CA. § 1227(a)(2)(A)(iii)) — Crime of Violence Under 8 U.S.CA. § 1101(a)(43)(F), 50 A.L.R. Fed. 2d 443, §§ 27-28 (2010).
The only thing short of demonstrating certain deportation that might satisfy the majority is detailed briefing, con*39tained within a pleading, discussing how the conviction fits within the federal deportation statutes. Wisconsin Stat. § 971.08(2) does not require such detail.
See, e.g., Tietsworth v. Harley-Davidson, Inc., 2007 WI 97, ¶¶ 25-26, 303 Wis. 2d 94, 735 N.W.2d 418.
It is longstanding uncontroverted law that a court abuses its discretion in refusing to allow an amendment of a pleading "[w]hen it appears that an omission ... is material,.. . and that such omission or failure is through mistake, inadvertence, surprise, or excusable neglect." Wiegel v. Sentry Indem. Co., 94 Wis. 2d 172, 184-85, 287 N.W.2d 796 (1980) (quoting Wipfli v. Martin, 34 Wis. 2d 169, 173-74, 148 N.W.2d 674 (1967)).
Although a motion is not a pleading, the Wis. Stat. § 802.09 directive to freely give leave to amend pleadings has been applied to motions. See State v. Sutton, 2012 WI 23, ¶ 22, 339 Wis. 2d 27, 810 N.W.2d 210.
See also Wis. Stat. § 972.11(1) (providing that with some exceptions, "rules of... practice in civil actions shall be applicable in all criminal proceedings unless the context of a section or rule manifestly requires a different construction").
3 Jay E. Grenig, Wisconsin Practice Series: Civil Procedure § 209.1 (4th ed. 2010)).
"As various members of this court have said, we should not 'reach out and decide issues' that were not presented to the court by the parties." Dairyland Greyhound Park, Inc., v. Doyle, 2006 WI 107, ¶ 335, 295 Wis. 2d 1, 719 N.W.2d 408 (Roggensack, J., concurring in part and dissenting in part) (quoting *41Town of Beloit v. Cnty. of Rock, 2003 WI 8, ¶ 72, 259 Wis. 2d 37, 657 N.W.2d 344 (Abrahamson, C.J., dissenting)).
See also State v. Thompson, 2012 WI 90, ¶¶ 9, 57, 342 Wis. 2d 674, 818 N.W.2d 904 (declaring that the court should not decide issues that are not briefed).
The United States Supreme Court has often explained the fundamental importance of the adversarial presentation of issues. See, e.g., Penson v. Ohio, 488 U.S. 75, 84 (1988) ("This system is premised on the well-tested principle that truth — as well as fairness — is 'best discovered by powerful statements on both sides of the question.'" (citations omitted)); Polk Cnty. v. Dodson, 454 U.S. 312, 318 (1981) ("The system assumes that adversarial testing will ultimately advance the public interest in truth and fairness."); Mackey v. Montrym, 443 U.S. 1, 13 (1979) ("[0]ur legal tradition regards the adversary process as the best means of ascertaining truth and minimizing the risk of error... .").
Scholars have made similar observations. See, e.g., Stephan Landsman, Readings on Adversarial Justice: The American Approach to Adjudication (1988); Jerold H. Israel, Cornerstones of the Judicial Process, Kan. J.L. & Pub. Pol'y, Spring 1993, at 5; Ellen E. Sward, Values, Ideology and the Evolution of the Adversary System, 64 Ind. L.J. 301, 316-19 (1989).