Cardozo Journal of Conflict Resolution
Abstract
To say that "The Vanishing Trial" is a myth is not to suggest that the facts or analysis in Professor Galanter's report are fictional or inaccurate. Indeed, he marshals a massive amount of data to show that the number of trials and the trial rates have been declining for the past four decades, particularly in the federal courts. The report documents an apparent paradox: the proportion of cases going to trial has dropped sharply during the past forty years despite substantial increases in many other legal indicators including the number of lawyers, the number of cases filed, and the amount of published legal authority. The most stunning fact is that the civil trial rate in the federal courts steadily dropped from 11.5 percent in 1962 to 1.8 percent in 2002. Even as the number of federal cases filed grew, the absolute number of trials decreased. If the report was titled, "Trial Rates Continue Longstanding Decline, Especially in the Federal Courts," there would be much less to quibble about. Of course, this would not have the mythic quality of TPKATVT. This refers not to the definition of myth as untruth but rather as a "popular belief or story that has become associated with a person, institution, or occurrence, especially one considered to illustrate a cultural ideal." This article argues that TPKATVT is a misleading and counterproductive myth and suggests alternative myths and methods for addressing the ideals embodied in TPKATVT.
Disciplines
Bankruptcy Law | Dispute Resolution and Arbitration | Law
Recommended Citation
John Lande,
Shifting the Focus from the Myth of "The Vanishing Trial" to Complex Conflict Management Systems, or I Learned Almost Everything I Need to Know About Conflict Resolution from Marc Galanter,
6
Cardozo J. Conflict Resol.
191
(2005).
Available at:
https://larc.cardozo.yu.edu/cjcr/vol6/iss2/2