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The American trial looms large in our collective imagination - witness the enormous popularity of Law & Order - but it is, in reality, almost extinct. Seven years ago, less than 2 per cent of federal civil cases culminated in a trial, down from 12 per cent forty years earlier. And the number of criminal trials also dropped dramatically, from 9 per cent of cases in 1976 to only 3 per cent 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 the all-too-common misinformation about contemporary trials, reminding readers of their 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 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 mine-shaft; 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.