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57 Stan. L. Rev. 1255 (2004-2005)
The Hundred-Year Decline of Trials and the Thirty Years War

handle is hein.journals/stflr57 and id is 1269 raw text is: SYMPOSIUM ARTICLES
Marc Galanter*
Although it defies popular images of the ubiquity of trials, an abundance of
data shows that the number of trials-federal and state, civil and criminal, jury
and bench-is declining.1 The shrinking number of trials is particularly striking
because virtually everything else in the legal world is growing-the population
of lawyers, the number of cases, expenditures on law, the amount of regulation,
the volume of authoritative legal material, and not least the place of law,
lawyers, and courts in public consciousness.2 But, curiously, the image of law
in public consciousness is centered on the trial. The media's obsession with
trials, fictional and otherwise, combines with myths about excessive litigation
to make the decline invisible to the public and, in large measure, to legal
John & Rylla Bosshard Professor of Law and South Asian Studies, University of
Wisconsin Law School; Centennial Professor, London School of Economics and Political
Science. I am grateful to my colleague Stewart Macaulay for his helpful comments on an
earlier draft of this paper and to Angela Frozena for her excellent work on the analysis and
presentation of the data.
1. Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters
in Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459 (2004). Counting trials is
itself a complex and daunting enterprise. There are multiple points at which one might
determine that a trial begins-the selection of a jury, the presentation of evidence, and so
forth. The various state standards are noted in Brian J. Ostrom et al., Examining Trial Trends
in State Courts: 1976-2002, 1 J. EMPIRICAL LEGAL STUD. 755, 762-63 (2004). In the federal
courts, a trial is defined as a contested proceeding before a judge or jury at which evidence
is introduced a definition that includes events other than the classical trial leading to
verdict or judgment. Admin. Office of the U.S. Courts, Form JS-10 (November 2000), . The
underlying federal data for Figures 1 and 3 below is a count of cases that terminated during
or after trial, so cases that settle during trial are included, as are trials conducted by
magistrate judges as well as by Article III judges. On the complexities of counting federal
trials, see Galanter, supra, at 461, 466, 475-76.
2. For somewhat dated but still relevant information on the growth of various
dimensions of the legal system, see Marc Galanter, Law Abounding: Legalisation Around the
North Atlantic, 55 MoD. L. REv. 1 (1992).


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