COURTING THE VIRTUAL

            This paper represents an intentional departure from the other presentations at the symposium.  It is intended as a stretching exercise, and perhaps a small provocation.  It considers the operation of federal courts in an age of complete inter-connectedness--or almost.  It respects the boundaries of the body, i.e., it assumes that people continue to communicate from their peripheries instead through probes connected directly into their nervous systems. 

            At least one author has explored the extreme alternative. Lisa Mason published Arachne  in 1990.[1]  This otherwise slight novel has the virtue of taking lawyering  and judging to an extreme condition of admission to the bar: in order to practice, you must be implanted with electrodes that can hook your brain directly into telespace, where you advocate or adjudicate at the speed of your nervous system. Others in the virtual courtroom with you, as adversary or judge, may be  wetware like yourself or digital hardware––you may not know who is which, and it may not matter much. 

            One might wonder why anyone but a fantasist would be interested in such a scenario­­––just as one might have wondered about the fantasists who contemplated humans on the moon, robots on Mars, and artificial sheep.  There are, nevertheless, limits to useful provocation, so here we will draw the line on interdependence at the epidermis. 

            Why bother with an essay into even this degree of futurity?  There are three reasons.  First, because the future becomes the present at an accelerated rate.  Moore’s Law[2] may turn out to be conservative; computing rates will continue to increase.  Increases in computing rates translate into new opportunities for software developers. In turn, the economic incentives to invent and market new software are without parallel as a motivator of frenzied commercial activity.   The combination of these two facts inexorably speeds the pace of change.

              Second judges, lawyers, and court administrators are usually keen to seek economies.  Ironically, this practical reason may turn out to be a weak one: the case for automation as a direct cost-reducer in courts has so far been weak.[3] Cost-avoidance and the necessity of remaining compatible with changes in other sectors are more defensible rationales for technological change. 

            The third reason is that, in one configuration or another, the  virtual courthouse is inevitable.  Its foundation is already under construction, but the scope of the edifice and the design of its interior spaces remain open for negotiation. The inevitability of the virutal courthouse arises from the requirement that adjudicative processes, though appropriately slow to change, must remain comprehensible and defensible to the public.  There is evidence all around us that emotional valences attaching to the “real” and the “virtual” may be heading toward equality. Resistance to virtuality is decreasing as television sets and computers merge synergistically into the background facts of life as pervasive and invisible as oxygen.

Overview of the Paper

              The paper proceeds as follows. Section II establishes structural and normative frameworks and makes several claims: 

            1) there are important psychological and cultural investments in the relation between physical locations and structures, on the one hand, and the activities that go on at those places, on the other.  This is clearly demonstrable in the case of courts and judicial process.  Significant moves to virtuality must be explained and justified in terms of these investments.  Proponents of change should expect to meet resistance to their ideas, nor can they legitimately ignore the foundations of the resistance. 

            2) It is useful to disaggregate the spaces and functions of the courthouse into four pairs: the library, where the law and related information are stored and retrieved; the clerk’s office, where case information is received, distributed, and stored; the courtroom, where facts are found and arguments made and heard; and the chambers, where arguments are pondered, decisions made, and opinions written. (The jury deliberation room houses the first two functions.) 

            3) The introduction of electronic technology into court functions proceeds in two directions, sometimes simultaneously:  on the one hand, technology concentrates activities in specified locations, usually pre-existing courthouses; on the other hand, technology disperses essential court activities.  The interplay between concentration and dispersion configures the changing characteristics of these activities. 

            4) Arguments about change in the direction of virtuality are based on value judgments, so it is important to establish consensus about the values whose protection is the source of controversy in the face of the move to virtuality; different value schemes are introduced and one is accepted as useful for current purposes. 

            Section III describes the parameters of complete dispersion in each of the four rooms/functions of the virtual courthouse, in an effort to portray the court’s “look and feel” if technical dispersion of court functions were completely virtual.  The paper points to several important issues: How much of this change is already in place? What technical barriers to implementation still exist, if any? Where along the path from the present to complete implementation will and should change be resisted, and why?  And of special importance, how does the full implementation of virtuality play out against the values we seek to preserve and enhance? 

            Section IV assesses the work of Section III and concludes that it missed something fundamental.  The flaw arose from assuming that the substance and procedure of law will remain constant during the period that courts gradually come on-line and adopt, or are adopted by, the new environment created in cyberspace.  As several examples will show, this assumption is certain to be wrong in ways that will be important for understanding how court work is likely to evolve. 

            The final section sketches two projects that, it is hoped, grow out of a middle-range perspective on the possibilities of technological feasibility and judicial flexibility.