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

The vanishing trial myth has three elements: (1) The, (2) Vanishing, and (3) Trial. "The" implies, inaccurately, that there is a single uniform phenomenon of trial. "Vanishing" implies, inaccurately, that the trial is on the verge of disappearance. "Trial" evokes many images, most of which are highly idealized and unrepresentative of the vast majority of trials. Although this phrase is misleading, the phenomenon known as the vanishing trial (TPKATVT) has taken on a life of its own that transcends empirical reality. To say that The Vanishing Trial is a myth is not to suggest that the facts or analysis in Professor Marc Galanter's seminal report on the vanishing trial 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. 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. Part II of this article describes the mythical character of TPKATVT and why it is a misleading portrayal of empirical reality. Using Galanter's concept of the ecology of conflict resolution, Part III sketches an ecological description of our system of managing conflict and the place of trials in that system. Part IV describes a range of goals that communities might adopt for their conflict management systems. Part V pictures several possible evolutionary paths for the conflict management systems and suggests ways to cultivate healthy systems including a valued place for trials. Part VI suggests adopting myths to celebrate people managing their ecology of conflict rather than to celebrate (or demonize) disputing procedures. Although this article provides a different perspective of TPKATVT than Galanter's, it is also an appreciation of his work, including extensive cites to and quotes of his scholarship to introduce readers to it or remind them of it. This article lays the groundwork for another one, 'How Much Justice Can We Afford?: Defining the Courts' Roles and Deciding the Appropriate Number of Trials, Settlement Signals, and Other Elements Needed to Administer Justice,' which will be published in an upcoming vanishing trial symposium in the Journal of Dispute Resolution.