Vanishing Trial, Vanishing Community - The Potential Effect of the Vanishing Trial on America's Social Capital

This essay considers the communitarian implications of the vanishing trial phenomenon. Its language is tentative, because while we now have-thanks to Marc Galanter and his associates-a great deal of useful data on the vanishing trial, we have only some hints regarding its causes, and an even less concrete notion of its likely consequences.' The empirical data unearthed by Professor Galanter and others has debunked a number of myths regarding the litigiousness of our society and the extent to which the courts are employed to resolve disputes. Given the care that has been invested in this research, it would be reckless to jump prematurely to conclusions regarding its implications, for example, by stating that the vanishing trial is but further evidence of the decline in America's social capital. But the diminishing opportunity for Americans to convene publicly and formally in a trial setting nevertheless has disturbing implications for communitarians, which we ought not ignore.

In particular, we should be concerned about developments that remove law and legal institutions from broad participation by the citizenry and concentrate them in the hands of an educated elite. I therefore hope the reader will allow me to indulge in some semi-educated guesses