The Decline of Trials in a Legalizing Society

Outcomes determined by trials have been a steadily declining portion of case dispositions in American courts for more than half a century; and for the past quarter century, trials in those courts have been declining in absolute numbers. Although there are differences in detail, the trend line is clear—the trial is declining as the thing—indeed the central, defining, characteristic thing that our courts do. The departure of trials is mourned by some judges, practitioners, and academics but is celebrated by others. The rarity of trials remains hidden from many by their robust media presence. This Article juxtaposes the decline of trials to changes in the role and shape of law in American society and to the continuing increase of laws, regulations, lawyers, and litigation.