How Much Justice Can We Afford?: Defining the Courts' Roles and Deciding the Appropriate Number of Trials, Settlement Signals, and Other Elements Needed to Administer Justice

Abstract

This article discusses how the U.S. court system can function optimally given declining trial rates and the limited resources available. The question of how much justice we can afford is a challenge that becomes more difficult as budgets fall behind the increasing demand for and cost of court services. Presumably most analysts would agree that courts should try cases when appropriate - and help litigants find just resolutions without trial when it is not needed. The courts' ability to provide trials in some cases is possible only if the vast majority of other cases are not tried.

This article provides background about the federal district courts' workload and financial situation and then identifies courts' goals for satisfying litigants' and society's interests in the courts. Based in part on input from federal court clerks, this article discusses benefits and problems caused by declining trial rates and analyzes possible strategies for dealing with those problems. These strategies include ensuring that litigants have a real choice of disputing procedures including trial, routinely collecting and disseminating data on negotiation and settlement, designing court facilities to fit realities of litigation, reforming legal education to reflect the realities of legal practice, making judging more attractive to judges, and expanding courts' roles in promoting local dispute resolution systems.

Keywords: vanishing trial, courts, negotiation, settlement, data, legal education

JEL Classification: K41, K42