COURTING THE VIRTUAL

II.        The Structure and Functions of the Federal Courthouse          

            A. “The federal presence” in bricks and mortar  

            In 1978 Lois Craig and the staff of the Federal Architecture Project reminded us of a fundamental fact: 

Buildings and landscapes express subjective values.  Particularly in its public works––its architecture and land planning––a society projects its views of the world and of the good life.  From the beginning of the American nation such design choices have embodied many forces, political and economic as well as cultural.  Government building, then, must be understood in the context of the American experience, which has been encompassed in the dimensions of American space. [1] 

Craig and her colleagues demonstrate that each period of our history has been accompanied by characteristic styles of federal architecture and construction. Throughout the 200 years of the nation, our buildings have not merely housed official functions. They and their ornaments establish “the federal presence, ” a powerful force that can act as an economic  stimulus, a reassurance, a warning, even a provocation to the citizens where the buildings are located.[2] 

            There is an irony in contemplating the benefits of virtual courthouses at a time when the federal courts are engaged in the largest building boom of their history: a 13-year, $8 billion effort to enlarge or build 169 courthouses. The architects and judges who are leading this effort speak in highly symbolic terms about the significance of courthouse style and quality in supporting the work of judges and court administrators.  Thus one architect says “The essential problem is to find the voice with which this building will speak to its constituency.  The challenge is to give voice in architecture to the values embodied in the American system of jurisprudence.” Another architect claims that this “crazy cyberspace world” degrades our sense of community, and that excellent civic architecture is a necessary antidote.  Supreme Court Justice Breyer advocated for the grand new Boston courthouse, arguing that it should be “accessible to civic life, as intensely dramatic as theater, and as rich in liturgical significance as a cathedral.  Nothing should be done in the design of courthouses to impoverish these aspirations.” [3] 

            How does the aspiration for a virtual courthouse, in which the activities of all the parties and other participants are leveraged insofar as possible with assistance from electronic communications and computational devices, mesh with the aspiration for a grand federal courthouse presence in bricks and mortar?   

            B. Are there connections between buildings and arguments? 

            Two phrases in ordinary English encode cultural messages supporting a connection between place and function and emphasizing the special nature of the federal presence: “taking [someone] to court” and “making a federal case of it.”  If I threaten to take you to court, the threat is intensified for  a “federal case,” with all the attendant images of federal law enforcement and the extraordinary power of the federal government generally.  

            Physical structures and related metaphors are important symbols of governmental presence; but there is more to the linguistic story than that.  There is also an intimate relationship, through pervasive metaphors, between argument, the form of discourse that undergirds litigation, and buildings and construction.  The connection was made by George Lakoff and Mark Johnson in their landmark linguistic study Metaphors We Live By:           

            THEORIES (and ARGUMENTS) ARE BUILDINGS

Is that the foundation for your theory?  The theory needs more support.  The argument is shaky.  We need some more facts or the argument will fall apart.  We need to construct a strong argument for that.  I haven’t figured out yet what the form of the argument will be.  Here are some more facts to shore up the theory.  We need to buttress the theory with solid arguments.  The theory will stand or fall on the strength of that argument.  The argument collapsed.  They exploded his latest theory.  We will show that theory to be without foundation.  So far we have put together only the framework of the theory.[4]  

            Thoughtful people will differ in the  importance they attach to these psychological and cultural factors.  But we ignore them at our peril.   

            C. The four rooms of the courthouse and their functions  

            At a first approximation, the traditional federal courthouse[5] encloses discrete spaces to which separable but inter-related functions are assigned, as shown in the following table: 

            Even without the introduction of new technologies, this allocation of function to space is only approximate.  To begin with, the spaces are not exclusive containers of the functions as three exceptions can quickly show.  Federal judicial chambers contain private libraries that over time contain much if not all that the judge and law clerks will need for most cases.  Second, the virtually total reliance on individual calendaring in federal courts has moved a great deal of calendar control into chambers; the role of the courtroom deputy in this regard has made this role one of central significance in federal court administration.  And third,  emphasis on crisp case management through quick rulings prompts some federal judges to rule from the bench rather than taking completed cases back into chambers for deliberation before rendering a decision.  

            The list of spaces is also incomplete.  It excludes holding spaces for criminal defendants, for example.  This is a particularly significant architectural item in light of communications technology, because there is now no technical bar to keeping defendants in their lock-ups and providing two-way videoconferencing with courthouses whenever desired.  But, obviously, there are more than technological  considerations to be considered in such changes.  

            Finally, the list of functions is incomplete. For example, judges must sometimes hear and rule on ex parte motions on behalf of prosecutors or private attorneys, and the physical space in which this transaction occurs is not tightly constrained.   

            Despite these flaws, the model relating space and function provides a reasonable starting place from which to describe and assess the impacts of new electronic technologies.

D. Concentration and dispersion arising from technology  

            1. A brief history and its significance  

            Two trends with complex interactions have characterized the introduction and development of electronic technologies into the federal courts.  One is the concentration  of equipment and technical staff in traditional spaces. The other is the dispersion  of traditional functions and activities away from courthouses because of the efficiencies and functionality created by electron technologies. In respect to technological developments in the library, clerk’s office, and chambers, the two trends have sometimes coexisted without there being much awareness  or concern that they are  interactive and partially countervailing, while at other times the distinction between “centralization” and “decentralization” has been the cause of contention.  

            For example, from the federal court clerk’s office perspective,  during the 1970’s and early 1980’s the important thing was that terminals, keyboards, printers, and communications hookups were installed in the office, not that mainframe computers and storage devices located in Washington, D.C. would now be the locations of the courts’ dockets. It seemed reasonable that the computers supporting the work would be located centrally and that the design, programming, and maintenance staff would be located with them. [6]  

            All of that changed dramatically with the introduction of PCs in the early 1980’s.  Within a couple of years, pockets of technological competence had developed in a small number of court offices, and from these emerged local PC-based case management software that challenged the prevailing centrally managed mainframe systems.[7]  To some systems people employed in federal courthouses, it then seemed more reasonable to develop their own systems using the PC-based tools of the day; the advantages of centralization were outweighed, from their perspective, by the ease with which they could solve local problems of data entry, docketing, and other case management document production with relative ease, even when the early versions of the local systems did not have the full functionality of the centrally supported programs. [8] 

            The tension between central and peripheral systems development, maintenance, and control in respect to administrative and case management systems continues in the federal courts today, but it is now submerged under a complex administrative superstructure.[9]  The current configuration of case management systems is one of partial decentralization (with each bankruptcy, district, and appeals court controlling its own hardware while running software that has been developed and is still controlled by a national development scheme) and national inter-connectedness (via a secure data communications network).  Some functions, for example bankruptcy noticing, have been outsourced by relying on electronic communications between courthouses and a private service provider.  Internet connectivity is perceived both as a potential boon and a threat to court system security.[10]  While numerous courts have websites, the Administrative Office would prefer all court Internet connections to operate through its own secure Internet server, or at least to submit the court’s own firewall implementation to AO inspection for approval. 

            2. The turn from computation to communication  

            Until recently in the federal courts, the communicative benefits of computer networks were conceptually subordinated to, or conceived as separate from, the obvious benefits of fast computation and automated report generation.  But by this time, in large measure, requirements for docketing and other case and court management systems (the computational requirements) are well-understood and generally well-implemented.   The residual problems are logistical and managerial rather than technical.  Substantial logistical problems attach to releasing new generations of case-management systems nation-wide and maintaining existing systems.[11]  Maintaining uniformity and consistency of use of these systems, to ensure accurate national statistical reporting and other policy-relevant uses of the data, is a managerial problem at all levels of operation. 

            Several well-known factors have, in addition, created a massive re-orientation of focus on the communicative potential of new technologies.  The factors include the conceptual shift from “data” to “information,” the replacement of stand-alone proprietary word processing systems with multi-purpose desktop computers, the rapid evolution of local area networks,  and the emergence of the Internet from ARPAnet. The federal courts are at this time almost completely interconnected through their Data Communications Network (DCN) which, among other things, supports e-mail.[12]  There have been modest uses of desktop videoconferencing. So far, however, the major initiatives for video communications are the Federal Judicial Television Network (a digital satellite broadcast network proposed to allow broadcasts from the Thurgood Marshall Federal Judiciary Building in Washington, D.C.  to practically every federal courthouse in the system) and the beginning of a national studio-quality videoconferencing system.  The broadcast network will be devoted largely to training and related communications managed by the Federal Judicial Center,  while the videoconferencing system will be devoted largely to administrative conferences among courts or between courts and the Administrative Office. 

            3. Where is  the shadow of the courthouse?  

            Concentrating on the rooms and functions of the courthouse should not cause us to forget that the physical courthouse is not, in fact, the location of most of the activity that comprises “a case,” especially a civil case.  The locations of this activity are largely in lawyers’ offices and other spaces connected in various ways to the parties and the events that comprise the factual foundations of the case.  The physical courthouse is the location for enacting well defined events, depositing documents and other materials that create the official trail or public account of the case, and housing the public officials who are responsible for adjudicating the case and protecting public records of it.  

            The courthouse is the physical seat of judicial authority. It thus casts a shadow of the law, over the activities in a case that do not occur within it.[13]  An excellent example is the effect of the court’s implicit or potential presence during depositions, as described in this standard text: 

While “Let’s get the judge on the phone!” may actually be wielded more  often as a threat than as a real suggestion, it is generally an efficient way to resolve discovery problems where magistrates or even judges are willing to listen to disputes over the telephone.  If the courthouse is relatively close, the attorneys may appear in person, but obviously that takes more time.[14] 

            This example, reminding us that traditional courts function by the effect of their shadows (implicit or potential presence) as well as their availability as physical spaces, should also suggest that electronic inter-connections, once limited to the telephone, provide new, rich opportunities for expanding and refining the reach of the court’s shadow and its beneficial effect on the “just, speedy, and inexpensive” resolution of disputes.  We will return to this idea in the final section of the paper.  

            4.  The special case of the courtroom  

            For most people who do not make their livings in and around courthouses, the court is the courtroom.  The public is saturated with images and accounts of courtroom activities.  The role of television in the media carpet-bombing of public consciousness is obvious, and so are the parts played by novels and non-fiction trade books centering on trial lawyers, jurors, and litigation. Activities supporting and supported by work in the courtroom are booming.  Thus trial consultants have active practices supporting litigators with diverse services. And in the background, academic research on juries and other courtroom topics has surged. 

            There are good reasons for this attention.  Courtroom trials are highly focused events that have profound consequences for the litigants.  They are uniquely formalized and stylized relative to other decision-making processes, whether public or private. They become microcosms in which volatile social issues are rehearsed and acted-out, but not finally resolved.  The bar that separates the well of the courtroom from the public seating functions like the proscenium between a  stage  and the audience: it separates the space where the action is from the space where spectators sit.  The dramatic intensity of the courtroom is related to this separation; perhaps it even draws some of its intensity as an emotional metaphor from its formal, spatial similarity to theater.  In any event, changes in the formalities, including spatial and temporal features of the trial as a public occasion, are bound to arouse interest and concern. 

            We can be certain that the expressions of concern will not be limited to calm and careful analysis.  The courtroom trial has such symbolic significance for Americans that changes proposed in its rules and procedures can stimulate heated and intemperate rhetoric in reaction.[15]  The arguments pro and con such changes are thoroughly value-laden, especially as they affect the role and methods of the jury. Proponents of change should be able to show that these values are protected or enhanced, not threatened, by the change.  We return to these questions in section III C. where we push the envelope of courtroom proceedings by relaxing the constraints of time as well as space, creating the virtual courtroom.   

E.   The value scheme: what do we care about?  

            I wrote the following paragraph in an effort to capture the sort of value statements that warn against over-eager adoption of electronic technologies in the core activities of courts: 

Courts are repositories and guarantors of fundamental values.  When courts change the way they operate, the changes must not be made at a cost to these values. Exploiting technology for the sake of efficiency must not compromise the core values of our justice system. 

            Though laudable in its sentiment, the statement presents real problems. One is a lack of specificity: exactly which values must courts protect above all?  What trade-offs will be required among them, and what compromises will be necessary?  What is the benchmark:  how well are courts currently protecting fundamental values? 

            These are controversial subjects.  The problem is not only to find a list of values that should operate at the core of the justice system.  The problem is also to determine how to deal with deep trade-offs among these core values.   For the various spaces and functions of the court, how will expanded reliance on virtual space and asynchronous communication augment, protect, or threaten acceptable balances among core values? 

            In 1990, the Commission on Trial Court Performance Standards (the Commission), under the auspices of the National Center for State Courts and the Bureau of Justice Assistance, Department of Justice, developed 22 performance standards organized under  5 broad areas of court performance. [16]  We will use these standards as primary landmarks in traversing the spatial and temporal characteristics of a fully implemented virtual courthouse. 

            Two other pertinent accounts of court-related values have also been published since the work of the Commission: a 1994  article in Judicature about threats to important values potentially arising in the virtual courthouse,[17] and The Long Range plan for the Federal Courts endorsed by the Judicial Conference of the United States in 1995.[18]   We will also refer to these materials to highlight specific concerns. 

            The  text  of the 22 standards is included here in appendix 1.  The Commission summarized them under  the 5 broad areas of performance as follows:[19] 

1.      Access  to Justice:  requires that the structure and machinery of the courts be accessible to those they serve.

2.      Expedition and Timeliness:  require the prompt and efficient resolution of disputes and all other court activities.

3.      Equality, Fairness, and Integrity:   require the courts to provide due process and individual justice, treat similar litigants equally, and ensure that their actions are consistent with established law.

4.      Independence and Accountability: require the courts to remain independent of and maintain parity with the other branches of government. Also, the courts must be accountable for the management of their resources and for maintaining high standards of integrity and competence among all employees.

5.      Public Trust and Confidence:   require the courts to instill public trust and confidence that they operate fairly, efficiently, and effectively. 

              One of the values specified by the Long Range Plan for the Federal Courts deserves emphasis here.  The first is unique to the federal system.  Federal courts should be “national courts of limited jurisdiction, operating within a system of federalism.”[20]  This is especially important because it suggests the question of whether adjudication under some subject matter (and personal) jurisdictions of national courts is particularly well suited to the distance-shrinking effects of the virtual courthouse.  (Consider, for example, cases that now require in-person presence before the Court of International Trade, in New York City, or the Court of Appeals for the Federal Circuit, in Washington, D.C.).  This question arises again in section IV. 

              The article in Judicature raises one additional value question for consideration at this point, which is the extent to which transitions into the virtual courthouse would lessen judicial job satisfaction, especially on the federal bench, where case loads are lower and the pace generally less hectic than on the state court trial bench. There is no single or simple answer to this question.  Presumably, any innovation that has a clear net benefit for sound judicial practice will be welcomed by the judges who are to use it.