Vanishing Trial, The

Justice System Journal, 2005 by Wasby, Stephen L

Special Issue on "The Vanishing Trial." Journal of Empirical Legal Studies I, no. 3 (November 2004): 459-984.

This worthwhile, lengthy special issue presents a study of the significant decrease in the number of trials; the study was undertaken as part of a project under the auspices of the ABA section of Litigation Civil Justice Initiative. The study and other papers presented by academics to a December 2003 conference of state and federal judges and practitioners are the basis for this volume. In addition to the core document, Marc Galanter's "The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts" (pp. 459-570), presented here are responses to that study and observations on various aspects of the subject. Primary attention is given to civil trials, although criminal trials are also mentioned, largely as a factor affecting civiltrial rates.

Studies supplementing Galanter's include Herbert Kritzer's comparative study of Ontario, England, and Wales (pp. 735-54); Elizabeth Warren's examination of bankruptcy cases (pp. 913-42); Stephen Burbank's exploration of the use of summary judgment, subtitled "Drifting Toward Bethlehem or Gomorrah?" (pp. 591-626); and Ted Eisenberg's analysis of appeals from tried and untried cases, a "Further Exploration of Anti-Plaintiff Appellate Outcomes" (pp. 659-89). Brian Ostrom and his National Center for State Courts colleagues look at state court trials from 1976 through 2002 (pp. 755-82), and Thomas Stipanowitch reports on effects of court-related ADR programs in federal and state courts (pp. 843-912).

Such empirical examination is far from all this symposium contains. Methodological problems involved in trying to determine trial rates over time are examined. Gillian K. Hadfield gives serious attention to the availability of and quality of appropriate data ("Where Have All the Trials Gone? Settlements, Nontrial Adjudications, and Statistical Artifacts in the Changing Disposition of Federal Civil cases," pp. 705-34). Galanter's study is analyzed and criticized, for example, by Stephen Burbank ("Keeping Our Ambition Under Control: The Limits of Data and Inference in Searching for the Causes and Consequences of Vanishing Trials in Federal Courts," pp. 571-90) and Lawrence Friedman ("The Day Before Trials Vanished," pp. 689-704, which brings a valuable historical perspective). There are reflections, and normative questions are raised; they are present in a number of the articles but are central to Paul Butler's "The Case for Trials: Considering the Intangibles" (pp. 627-36) and the essay by Stephen Landesman, "So What? Possible Implications of the Vanishing Trial Phenomenon" (pp. 973-84).

The types of explanations offered for the decrease in trials are resources (availability of judges and magistrate judges); "supply-side" factors (cases filed), to which Shari Seidman Diamond and Jessica Bina's especially fine analysis, "Puzzles about Supply-Side Explanations for Vanishing Trials: A New Look at Fundamentals" (pp. 637-58) gives particular attention; costs of litigation; and the shift to ADR and privatization of the legal process, considered by Judith Resnik ("Migrating, Morphing, and Vanishing: The Empirical and Normative Puzzles of Declining Trial Rates in Courts," pp. 783-842) and others. Stephen Yeazell adds rule changes to the mix in "Getting What We Asked for, Getting What We Paid for, and Not Liking What We Got: The Vanishing Civil Trial" (pp. 943-72). SLW