Finding the Civil Trial's Democratic Future after its Demise

Abstract

The civil trial has all but vanished. Its passing puts in jeopardy a number of contributions that civil litigation can make to American democracy, including citizen engagement with the processes of government and the limitation of elite power. No one has mourned the civil trial’s passing more eloquently than Steve Subrin, and no scholar has offered more creative and practical ideas for its reinvigoration than he. In this contribution to a festschrift in Prof. Subrin’s honor, I ask whether the civil trial’s democratizing potential can be reclaimed, and if so how. I argue that some of the rules and case management techniques that Prof. Subrin has designed to encourage small cases to proceed to trial will better succeed in large cases against government agencies for structural reform. I illustrate this claim with an extended account of Graves v. Arpaio, a remarkable prison conditions case litigated in Maricopa County, Arizona over a forty-year period. Graves v. Arpaio illustrates how trial can discipline the litigation process, level the playing field between powerful and less powerful actors, and correct for political failures.

Keywords: civil trial, Steve Subrin, Graves, Arpaio, litigation process, citizen engagement, case management