Commentators have expressed concern about "the vanishing trial" with respect to the possible loss of precedent and the loss of opportunities for aggrieved persons to have their concerns resolved in the judicial arena. Ignoring the controversy surrounding whether the number of trials is actually decreasing significantly, this paper asks whether the number of trials would be significantly affected if all people of faith resolved their disputes within their religious communities, or at least outside of the secular court setting. The impact on secular case law of the disappearance of such disputes is then estimated. Finally, recommendations are presented for overcoming the consequent loss of trial-based case law. Section II describes in general terms the "peacemaking" traditions of Christianity, Judaism, and Islam, which are the major religious traditions in the United States today. In all three religions, there is a common thread of resolving disputes between fellow believers using scripture-guided negotiation, mediation, arbitration, and variants of these methods. Section III provides examples of recent court opinions that demonstrate widespread and settled acceptance of faith-guided dispute resolution clauses in secular contracts. Section IV combines demographic statistical data about court caseloads and faith communities to obtain an estimate of the number of cases filed each year in the United States by members of those faith communities. Section V uses this estimate to assess the impact on the federal and state courts if these lawsuits were to disappear. Finally, Section VI addresses the concerns of commentators about loss of precedent and loss of forum if secular or faith-guided dispute resolution were to significantly reduce the number of cases entering the litigation system.
Anthony R. Benedetto,
The Impact on "The Vanishing Trial" If People of Faith Were Faithful to Religious Principles of Settling Disputes Without Litigation ,
6 Pepp. Disp. Resol. L.J.
Available at: https://digitalcommons.pepperdine.edu/drlj/vol6/iss2/3