Should we be teaching arbitration?

12/17/2009

Should we be teaching arbitration?

Gordon Smith offers an anecdote:

I spent two hours this morning with a state court judge. He told me that a decade ago he had 30-35 jury trials, and this year he has had two. Both criminal trials. We didn't have an opportunity to explore all of the variables that might have produced this result, but his point was that people (and businesses) simply don't use the judicial system anymore for civil litigation. This is not a new point, I realize, but it still made me pause and reflect on the litigation-oriented curricula at most law schools.

The anecdote is indicative a broader trend. Indeed, following the lead of Marc Galanter, many people now speak of the vanishing trial. In 2004, Galalnter reported that:

The portion of federal civil cases resolved by trial fell from 11.5 percent in 1962 to 1.8 percent in 2002, continuing a long historic decline. More startling was the 60 percent decline in the absolute number of trials since the mid 1980s. The makeup of trials shifted from a predom- inance of torts to a predominance of civil rights, but trials are declining in every case category.

Much of the blame (or credit, depending on your point of view) for this shift can be traced to the substantial shift from courts to various forms of alternative dispute resolution. Calvin Morrill's paper on the evolution of ADR provides a very good overview of the processes and trends that drove the shift away from courts to arbitration and the like.

I think Gordon is quite right that law school curricula needs to account for this development. Like most law schools, UCLA offers a handful of courses that entail some attention to ADR:

Curiously, there's no basic ADR course on offer. Nor, to the best of my knowledge, has there been a systematic effort to think through the implications of the vanishing trial for how we structure the curriculum. Instead, like most schools, we've been doing it sort of ad hoc.

If I were running a law school (god forbid), with the power to write on a blank slate, I would put transactional practice and ADR at the core of the curriculum. Students would not be able to graduate without some exposure to both. I'd also offer "majors" in transactional practice and ADR so as to provide students with a logical and coherent set of advanced courses for those who want to specialize.

But the debate between the cafeteria approach to legal education and the tracks or majors approach is a topic for another day.

Posted at 11:41 AM in Law School, Lawyers | Permalink

Comments

Gordon Smith offers an anecdote:

I spent two hours this morning with a state court judge. He told me that a decade ago he had 30-35 jury trials, and this year he has had two. Both criminal trials. We didn't have an opportunity to explore all of the variables that might have produced this result, but his point was that people (and businesses) simply don't use the judicial system anymore for civil litigation. This is not a new point, I realize, but it still made me pause and reflect on the litigation-oriented curricula at most law schools.

The anecdote is indicative a broader trend. Indeed, following the lead of Marc Galanter, many people now speak of the vanishing trial. In 2004, Galalnter reported that:

The portion of federal civil cases resolved by trial fell from 11.5 percent in 1962 to 1.8 percent in 2002, continuing a long historic decline. More startling was the 60 percent decline in the absolute number of trials since the mid 1980s. The makeup of trials shifted from a predom- inance of torts to a predominance of civil rights, but trials are declining in every case category.

I think Gordon is quite right that law school curricula needs to account for this development. Like most law schools, UCLA offers a handful of courses that entail some attention to ADR: