Adversary Proceedings in Bankruptcy: A Sideshow

Across a broad range of cases, the civil trial is disappearing. In the early 1960s, about twelve percent of federal civil cases were resolved by trial; by 2002 that percentage had fallen to less than two percent. This sharp decline raises important questions about the quality y and costs of decisionmaking in federal district courts. After all, these courts exist to resolve cases and controversies. It matters whether (and why) these disputes are resolved in or outside the courtroom. Marc Galanter and Elizabeth Warren suggest that the same thing is happening in the bankruptcy courts and that there is likewise cause for concern. They argue that adversary proceedings are the part of the bankruptcy process that most resembles traditional civil litigation and hence the appropriate benchmark by which to determine whether there is a disappearing trial in the bankruptcy courts. They suggest that there has been a dramatic decline in the number of adversary proceedings and that this decline, like the decline in the number of civil trials, shows important changes are afoot. We disagree on all counts