122 Yale L.J. 522 (2012).

Since the 1930s, the proportion of civil cases concluded at trial has declined from about 20% to below 2% in the federal courts and below 1% in state courts. This Article looks to the history of the civil trial to explain why the trial endured so long and then vanished so rapidly.

For the litigants, a civil procedure system serves two connected functions: investigating the facts and adjudicating the dispute. The better the system investigates and clarifies the facts, the more it promotes settlement and reduces the need to adjudicate. The Anglo-American common law for most of its history paid scant attention to the investigative function. This Article points to the role of the jury system in shaping the procedure and restricting the investigative function. Pleading was the only significant component of pretrial procedure, and the dominant function of pleading was to control the jury by narrowing to a single issue the question that the jury would be asked to decide. This primitive pretrial process left trial as the only occasion at which it was sometimes possible to investigate issues of fact. Over time, the jury-free equity courts developed techniques to enable litigants to obtain testimonial and documentary evidence in advance of adjudication. The fusion of law and equity in the Federal Rules of Civil Procedure of 1938 brought those techniques into the merged procedure, and expanded them notably. The signature reform of the Federal Rules was to shift pretrial procedure from pleading to discovery. A new system of civil procedure emerged, centered on the discovery of documents and the sworn depositions of parties and witnesses. Related innovations, the pretrial conference and summary judgment, reinforced the substitution of discovery for trial. This new procedure system has overcome the investigation deficit that so afflicted common law procedure, enabling almost all cases to be settled or dismissed without trial. Pretrial procedure has become nontrial procedure by making trial obsolete.

122 Yale L.J. 690 (2012).

Legal rules severely restrict payments to fact witnesses, though the government can often offer plea bargains or other nonmonetary inducements to encourage testimony. This asymmetry is something of a puzzle, for most asymmetries in criminal law favor the defendant. The asymmetry seems to disappear when physical evidence is at issue. One goal of this Essay is to understand the distinctions, or asymmetries, between monetary and nonmonetary payments, testimonial and physical evidence, and payments by the prosecution and defense. Another is to suggest ways in which law could better encourage the production of evidence, and thus the efficient reduction of crime, with a relaxation of the rule barring payment.

122 Yale L.J. 782 (2012).

Crawford v. Washington is arguably the most significant criminal procedure decision of the last decade. Critics have argued that the Crawford line is a doctrinal muddle that has led to arbitrary and unpredictable results in the lower courts. I respond to this critique by presenting results from the first large-scale empirical analysis of post-Crawford Confrontation Clause cases in the lower courts. The results show that courts have emphasized two factors—the presence of a state actor and the presence of an injured party—to evaluate whether a statement is testimonial under Crawford. I then argue that, contrary to conventional wisdom, these results are not ambiguous or contradictory but instead consistent with the reasoning of Crawford and the underlying purposes of the Confrontation Clause.