Finding the Civil Trial's Democratic Future after its Demise

37 Pages Posted: 24 Feb 2016

See all articles by David Marcus

David Marcus

University of Arizona - James E. Rogers College of Law

Date Written: February 4, 2016

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

Suggested Citation

Marcus, David, Finding the Civil Trial's Democratic Future after its Demise (February 4, 2016). 15 Nevada Law Journal 1523 (2015); Arizona Legal Studies Discussion Paper No. 16-04. Available at SSRN: https://ssrn.com/abstract=2737445

David Marcus (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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