COURTING
THE VIRTUAL
IV. Conclusion: Where does
a case happen?
As I went through the exercise of making virtual each room of the
courthouse and its traditional functions, I experienced a gnawing discomfort,
a growing unease that something was missing: at the end, the exercise
seemed not to have captured enough about how the possibilities of the
Internet are going to transform litigation and adjudication as we know
it.
I believe that the problem arose from assuming, implicitly, that
courts are going to come on-line in an environment of substantive and
procedural law that will remain fixed––as if the influence of cyberspace
would not change the very fabric of social and economic relationships
that courts exist to protect.
But there is too much evidence that these changes are already occurring
to make the assumption even a convenient fiction. No one can be certain
about what all of these changes will be, or forecast their time courses.
Two big reasons for this are that interested parties are already contending
for control of the directions of change, and other parties have not yet
fully understood that they should become interested.
In this section I will sketch the outlines of a few topics that
seem to show how courts can and perhaps must change as a result of the
opportunities and imperatives cyberspace
will create in related domains.
A. Personal jurisdiction
The law of personal jurisdiction takes on a new dimension when
commercial transactions move across state lines over the Internet.
Federal case law is beginning to respond to the new demands of
dispute resolution in cyberspace.
David Post and Dawn C. Nunziato of the Cyberspace Law Institute
have published a list, last updated in October, 1997, containing approximately
20 separate federal cases, including 3 appellate cases,
that stake out the boundaries
of “minimal contacts” in cyberspace.
The majority of cases in the list have found in favor of
personal jurisdiction in the forum court on the basis of the availability
of the foreign Web site there.
These cases were, of course, litigated in the traditional fashion:
lawyers for the foreign party had to travel to the forum state for hearings
and trial. Given the nature
of the dispute and the technical sophistication of the parties, were these
trips necessary? Could the
litigation have been accomplished on-line, with the parties submitting
pleadings and briefs to the court through an appropriately secured Web
interface? As Internet commerce
proliferates, causing a great growth in otherwise ordinary commercial
disputes, does a robust Internet-based litigation system become a virtual
necessity?
B. Subject matter jurisdiction:
CORE courts
Will entities that are linked together electronically to do business
need the services of a dispute resolving system that operates in the same
frames of reference as they do?
Reliance on electronic technology inevitably creates a great need
for specialization; disputes
arising out of the commerce exploiting technologies appear to require
increasing specialization by judges and perhaps juries as well.
In the federal courts, however, the concept of the generalist judge
with jurisdiction in a defined geographic area is given a very high value
loading, as evidenced, for example by the language of recommendations
in the courts’ long range plan.
At the appellate level,
Recommendation 16 states that
“The federal appellate function should be performed primarily in:
(a) a generalist court of appeals established in each regional judicial
circuit; and (b) a Court of Appeals for the Federal Circuit with nationwide
jurisdiction in certain subject-matter areas.” At the district court level,
Recommendation 24 states that “Except in certain limited contexts (i.e.
bankruptcy proceedings, international trade matters, and claims against
the federal government) the primary trial forum for disputes committed
to federal jurisdiction should be a generalist district court whose judges
are affiliated with, and required to reside in, the court’s general geographic
region, and whose facilities are reasonably accessible to litigants, jurors,
witnesses, and other participants in the judicial process.
From the perspective of cyberspace, the generalist judge with
a jurisdiction limited by physical geography begins to appear anachronistic.
Moreover, in cyberspace the exceptions noted in the recommendations
for specialization may devour the rule, particularly as “international
trade matters” become much more frequent visitors to federal dockets.
Roberta Katz has argued in favor of developing as many specialized
courts as necessary to do proper justice to burgeoning areas of legal
and technical specialization.
She calls her subject-matter
forums “CORE Courts,” an acronym for “COmmonality/REsolution.”
In her view, “The gap between real-world specialization and judicial
generalism is...a significant contributor to the growing sense of injustice
and unfairness in our courts.” She
provides many examples of subject-matter areas for a single CORE court,
and describes how ADR would be built into each CORE Court’s set of procedures.
For current purposes,
I would emphasize just one point:
if national courts of special subject-matter jurisdiction develop
on CORE Court lines or in some other model,
the specifications of a judge’s geographic jurisdiction will change
as profoundly as the definition of subject-matter jurisdiction.
The option of conducting court business in the virtual courthouse
could become an economic
necessity rather than a mere convenience.
One must not move too quickly to discount the importance of judges
who are known in their communities
as the personification of federal law there. The judge is an emblem
of the Federal Presence just as the courthouse is.
Recall that the fifth value embodied in the Trial Court Performance
Standards is public acceptance.
Will a public respect a federal bench whose members have indeterminate
physical and social relationships with the parties who “come before” them?
C.
Mutually embedded sovereigns: comity and delegation
One of the fullest expositions of how the maturing of cyberspace
requires radical re-assessment
of the reach of law as we know it is the article “Law and Borders––The
Rise of Law in Cyberspace,” by David Johnson and David Post.
Johnson and Post believe that in cyberspace, “separated from doctrine
tied to territorial jurisdictions, new rules will emerge, in a variety
of on-line spaces, to govern a wide range of new phenomena that have no
clear parallel in the nonvirtual world. These new rules will play the role of law by defining legal
personhood and property, resolving disputes, and crystallizing a collective
conversation about core values.”
In a truly original turn, the authors foresee a self-regulating
cyberspace that relates to traditional local authorities according to
two well-known legal principles:
“In applying both the doctrine of ‘comity’ and the idea of ‘delegation’
[as is done with other self-regulating groups], a local sovereign is called
upon to defer to the self-regulatory judgments of a population partly,
but not wholly, composed of its own subjects”
Among the many implications of this view of the future is one especially
pertinent to the current discussion.
Some communications between the “local sovereign” and their counterparts
in cyberspace, however constituted,
must occur in the native tongue and on the home ground of cyberspace––comity
demands no less. But, as
we have seen, the courts are learning the new language and acquiring cyberspace
real estate for their own reasons.
Given the trajectory of the federal courts into the use of cyberspace
on grounds of efficiency and effectiveness (like immigrants seeking a
better life in the New World), it seems that the courts become citizens
of the new self-regulating territory as well as potential regulatory entities
outside of it. This implies interdependency, which, of course, we see already
at work in the rules for establishing domain names for the courts and
their administrative bodies. The
identities of the governor and the governed become ambiguous here.
These considerations support a conclusion that the vectors pointing
courts in the direction of virtual courthouses grow from two different
origins. One is embedded
in the core values associated with efficient and effective practice of
court work as we know it in its traditional form.
This is the vector that began as “automation” of manual labor and
now is dissolving the walls that have separated the library, Clerk’s office,
courtroom, and chambers from each other.
The other origin is located in the need of courts, as cyberspace
citizens and agents of “foreign sovereigns” at the same time,
to assimilate to the culture of their new location––because if
they don’t, like immigrants everywhere, they will find it difficult to
make a living.
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