Due Process Without Judicial Process?: Antiadversarialism in American Legal Culture

For decades now, American scholars of procedure and legal ethics have remarked upon the death of the jury trial. If jury trial is not in fact dead as an institution for the resolution of disputes, it is certainly “vanishing.” Even in complex litigation, courts tend to facilitate nonadjudicative resolutions—providing sites for aggregation, selection of counsel, fact gathering, and finality (via issue and claim preclusion)—rather than trial on the merits in any conventional sense of the term. In some high-stakes criminal cases and a fraction of civil cases, jury trial will surely continue well into the twenty-first century. Wall-to-wall media coverage of the more sensational of these will continue as well; Americans have a very long and deeply ingrained habit of treating trials as a form of public entertainment.

But as a widespread legal and cultural practice—one that people experience as active participants, and one that plays a fundamental role in the administration of justice—jury trial is indeed vanishing.