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Migrating, Morphing, and Vanishing: The Empirical and Normative Puzzles of Declining Trial Rates in Courts, 3 Journal of Empirical Legal Studies 783 (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 proliferation thesis has plausibility because of the positive political significance now attached to trials and the adjudicatory processes for which they stand. 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. 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. The gaps in data on adjudication in state courts and within agencies reflect the lower priority paid to those kinds of claims. 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. 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. 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.

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