The Death of the American Trial

The American trial looms large in our collective imagination—witness the enormous popularity of Law & Order—but it is, in reality, almost extinct. In 2002, less than 2 percent of federal civil cases culminated in a trial, down from 12 percent forty years earlier. And the number of criminal trials also dropped dramatically, from 9 percent of cases in 1976 to only 3 percent in 2002. In The Death of the American Trial, distinguished legal scholar Robert P. Burns makes an impassioned case for reversing this rapid decline before we lose one of our public culture’s greatest achievements. Burns begins by cutting through all-too-common misinformation about contemporary trials, reminding readers of its essential features and functions. These characteristics, he shows, resulted from a centuries-long process that brought trials to maturity only in the early twentieth century. As a practice that is adapted for modern times yet rooted in ancient wisdom, the trial is uniquely suited to balance the tensions—between idealism and reality, experts and citizens, contextual judgment and reliance on rules—that define American culture. Arguing that many observers make a grave mistake by taking a positive or even complacent view of the trial’s demise, Burns concludes by laying out the catastrophic consequences of losing an institution that so perfectly embodies democratic governance. As one federal judge put it, the jury is the “canary in the mineshaft; if it goes, if our people lose their inherited right to do justice in court, other democratic institutions will lose breath too.” The Death of the American Trial arrives not a second too soon to spark a rescue operation before trials are relegated to the purely fictional realm of televised drama.