Explanations for the Vanishing Trial in the United States

Abstract

The phenomenon Marc Galanter famously termed the vanishing trial has been widely explored by scholars of law and politics, particularly as the continued decrease of trials in court raises concerns about access to justice and legal recourse in the United States. But a lingering question remains: Where have trials gone? This article argues that we need to diversify the potential range of explanations for the vanishing trial by taking an interbranch perspective that brings to bear the ongoing tension between legal and other forms of dispute resolution and governance. Given that courts are but one venue in which disputes are resolved, this approach expands upon the thesis that disputes have not disappeared but rather have been diverted elsewhere. I argue that reframing the conversation in this way stands to generate a revised set of explanations for this trend that are worthy of future research.