Robert P. Burns


On his book The Death of the American Trial

Cover Interview of May 31, 2009


This is what the death of the trial would mean for us:

It would eliminate a forum where equitable considerations moderate the rigor of the law of rules.

It would deprive us of a distinctively American forum where a citizen can tell his or her own story in public and offer the evidence to make it effective.

It would destroy a space where serious attention is paid to simple factual truth.

It would reduce serious citizen participation in self-government and likely damage the authority of the entire judicial branch.

It would roll back the hard-earned enfranchisement of women and minorities.

It would transfer power to political and technical elites.

It would distort the norms for settlement and corrode our sense of real freedom to reach compromises.

It would destroy the traditional relationship between face-to-face proceedings and the notion that legal proceedings are somehow about justice.  By squeezing drama out of those proceedings, the death of the trial would impoverish the range of cognitive capacities we deploy in the law.  We would both feel and see less.

The death of the trial would compress into a monolith the variety of and tensions among our modes of social ordering.  They could not longer qualify or “redeem” each other.  We would have less freedom to address pressing issues in different ways.

The death of the trial would render our economic systems more automatic and beyond qualification by ordinary moral norms.

It would end our ability incrementally to adjust our basic structure by norms that have their homes in other parts of our social world.

It would create a more bureaucratized world.

It would also create a world in which judges could exercise more raw discretion in the interstices of complex legal rules unstructured and unqualified by the objectivity of the real social norms that the trial realizes.

It would mean the end of an irreplaceable public forum.

It would mean that more of the legal order would proceed behind closed doors.

The death of the trial would deprive the American public of an important source of knowledge about key issues of public concern.

© 2009 Robert Burns