Law Commons^™

Busting Up The Pretrial Industry, Andrew S. Pollis

Faculty Publications

It is by now axiomatic that the objective of the civil lawsuit has evolved. Litigants no longer routinely resolve their disputes through trial but instead engage in pretrial battles designed to extract favorable settlements. Modern litigation revolves around protracted discovery and dispositive motions, driven by two primary dynamics: (1) the maximization of fees for lawyers who charge their clients by the hour; and (2) the desire to make litigation as painful as possible for an adversary so that settlement becomes the adversary’s better option. We have, in short, fostered a pretrial industry that can relegate the merits of a dispute …

Invisible Error, Cassandra Burke Robertson

Faculty Publications

When trial becomes a luxury, retrial can start to look downright decadent. Scholars have documented the “vanishing trial” in recent decades, exploring the various causes and effects of declining trial rates. Retrial, if mentioned at all, is portrayed as a relatively inefficient vehicle for error correction at best. At worst, it is seen as a threat to the sanctity of the ever-rarer jury verdict.

But the jury trial is only endangered, not yet extinct. And continuing to protect the constitutional right to a jury requires appreciating the role of retrial within the due-process framework. When the jury’s verdict contradicts the …