Puzzles about Supply‐Side Explanations for Vanishing Trials: A New Look at Fundamentals

The recent sharp decline in the rate of federal trials has many potential explanations. In addition to changes in the demand for trials, some commentary suggests that a shortage in judicial resources and the press of the criminal docket have led to problems of supply, inducing litigants to turn to alternative dispute resolution or other means of resolving their cases. The increased number of federal magistrate judges provides a counterweight to many of these claims about judicial shortages. Nonetheless, we show that a puzzle remains. Federal districts vary in their trial rates, and the rate of trial is negatively correlated with the number of civil cases filed per judge, regardless of whether magistrate judges are included in the total. Moreover, that relationship persists even after controlling for the rate of criminal cases filed in the district. Thus, unless other differences across districts explain the persistent negative correlation, the supply of judicial resources remains a potential contributor to the low rate of trial in the federal system, reducing the willingness of litigants to persevere until trial in districts with heavy caseloads. Prospective studies of the perceptions of litigants are needed to understand how the users of the civil justice system interpret trial signals and decide whether to resolve their dispute at trial.