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Elizabeth Warren, Vanishing Trials: The new age of American law, 79 Am. Bankr. L.J., Fall 2005, at 915.

Abstract: University of Wisconsin Professor Marc Galanter has assembled some startling data suggesting that even as the population grows and the number of lawsuits grows even faster, the trial has been on a sharp decline. The percentage of federal civil lawsuits that end in trial has shrunk from 11.5% in 1962 to 1.8% in 2002. Even more startling, is that the absolute number of trials has declined as well. Professor Galanter summarizes the prevalent theories to explain the data. The Diminished Supply Theory revolves around the notion that there are fewer disputes or that fewer disputes now make it to court. The Diversion Theory holds that newer non-trial alternatives, such as ADR, have drained off cases that otherwise would have gone to trial. The Economic Theory pins the decline in trials to the rising expense of trials. Professor Galanter asks the provocative question: How is the character of the law changed in the absence of trials? The reported changes in filing rates for businesses and non-businesses over time suggests that within the overall bankruptcy system, there are different strands of experiences, and that the number of routine cases, denominated as non-business, is multiplying much faster than the number of more complex business cases. The growth of these cases suggests that bankruptcy is serving an important-and growing-role to resolve many potential disputes through a largely routine administrative structure.