Does Criminal Diversion Contribute to the Vanishing Civil Trial?

Abstract

Through his seminal work on the vanishing trial, Professor Marc Galanter has had a profound impact on public and scholarly discourse about the role of the trial in litigation, documenting the sharp reductions in the rate of civil cases since the mid-twentieth century. While there is little remaining doubt that the American civil trial is an increasingly scarce commodity, there is still much debate as to what has caused the decline.

In this Article, we seek to explore the extent to which the federal criminal docket may be contributing to the rapid disappearance of the civil trial by taking priority in the distribution of court resources. To do this, we examined the data-set of all federal civil and criminal cases between 1996 and 2011. On the whole, we find little evidence supporting the notion that the criminal docket can explain any portion of the vanishing civil trial rate.

Keywords: law, trials, litigation