Migrating, Morphing, and Vanishing: The Empirical and Normative Puzzles of Declining Trial Rates in Courts

Posted: 10 Aug 2004


This article explores competing explanations of the data on declining rates of trials in the federal courts of the United States. One possibility is that while trials have declined in courts, trials have migrated elsewhere, resulting in a proliferation of adjudicatory processes. The data requisite to substantiate this theory are missing because the major institutions of the bench and bar are "court-centric," devoting resources to gather information about state and federal courts but not about adjudication based in agencies nor about privately provided dispute centers.

The proliferation thesis has plausibility because of the positive political significance now attached to trials and the adjudicatory processes for which they stand. Democracy has come to be understood as predicated upon obligations by governments to give individuals the opportunity to enforce rights against the state, to respect the human rights of individuals, and to provide access to information about the exercise of power by both public and private actors. National and transnational agreements evidence a world-wide political consensus that transparent adjudicatory processes are a prerequisite to successful market-based democracies.

Conversely, a second analysis of the data focuses instead on the rarity of trials in courts and the negative rhetoric and rules stemming from courts about trials. This argument relies on a host of rules, statutes, doctrines, and practices urging or insisting that disputants have limited access to the highest profile courts (the federal courts) in the United States and instead find means other than adjudication to respond to conflict. Those legal changes, coupled with the data, could mark a different normative consensus - one that rejects the public adjudicatory model. The data could mark the privatization of disputing processes, whether located in or out of courts.

The available data also reveal the political and economic incentives and capabilities of the legal profession. Its leadership spawned the institutional structures (the ABA, the ALI, the expansion of the federal courts) that produced the data here debated. Thus, we can track the roughly 10,000 trials conducted by Article III judges, the 13,000 trials over which magistrate judges preside, and the 60,000 adversarial proceedings closed by bankruptcy judges. In contrast, no central database enables easy insight into the estimated 720,000 hearings that federal administrative law judges conduct annually.

The gaps in data on adjudication in state courts and within agencies reflect the lower priority paid to those kinds of claims. If the resources provided to the federal courts are an appropriate benchmark for a reasonably supported public system, the disparity between the federal system and the others (which provide adjudicatory mechanisms for most complainants in the United States) illustrates the impoverishment of public provisions for dispute resolution. The investment of resources in the federal courts is not the only reason their decisions are better known. History, law, and tradition also support public access to courts, making them more transparent than more recently invented decision-making centers.

But one should not assume the stability of either the equation of courts with public access or the equation of administrative agencies and private providers with secrecy. Rather, both are choices over which the legal elite have considerable influence. Further, the public dimension of courts is at risk. Courts' processes are increasingly private, prompting the question of whether to insist (as some judges and state legislators now do) on public access to information about outcomes, settlements included, that are generated through courts or to permit invisible and sometimes secret resolutions. Whether trials are migrating, morphing, or vanishing, the normative questions now pending are whether a role ought to be preserved for public participation in dispute resolution in either courts or their alternatives and how public resources will be distributed to support either sector.

Suggested Citation

Resnik, Judith, Migrating, Morphing, and Vanishing: The Empirical and Normative Puzzles of Declining Trial Rates in Courts. Journal of Empirical Legal Studies, Vol. 1, No. 3, 2004. Available at SSRN: https://ssrn.com/abstract=574125

Judith Resnik (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1447 (Phone)
203-432-1719 (Fax)

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