Keeping Our Ambition Under Control: The Limits of Data and Inference in Searching for the Causes and Consequences of Vanishing Trials in Federal Court

Abstract

This article offers some reflections stimulated by Professor Galanter's materials, which were the common springboard for the Vanishing Trials Symposium. It suggests that other data, quantitative and qualitative, may be helpful in understanding the vanishing trials phenomenon in federal civil cases, notably data available for years prior to 1962, and questions whether it is meaningful to use total dispositions as the denominator in calculating a trial termination rate. The article argues that care should be taken in using data from state court systems, as also data from criminal cases, administrative adjudication, and ADR, lest one put at risk through careless assimilation of data or muddled thinking a project quite difficult enough without additional baggage. The article describes the limitations of data previously collected by the Administrative Office of the U.S. Courts and highlights unique opportunities created by the AO's switch to a new Case Management/Electronic Case Files system. It argues that Professor Galanter may underestimate the influence of both changing demand for court services (docket makeup) and of changing demand for judicial services (resources) on the trial rate. Finally, the article argues that conclusions about either the causes or consequences of the vanishing trials phenomenon in federal civil cases are premature, suggesting in particular reasons to be wary of emphasis on “institutional factors” such as the discretionary power of first‐instance judges and the ideology of managerial judging.