INDRA’S NET:
The Future of Courts and Electronic Technology
by: Gordon Bermant
Welcome to this inaugural discussion group for
judges on the future of courts in the age of the Internet. The concept of this column is simple. As one of your columnists, I will provide a
brief article that I hope will stimulate you to begin on-line conversations
with each other, based more-or-less on the themes of the article. I will stay tuned to the conversations. From time to time, another columnist or I will
stir the pot with another article. But the space really belongs to you,
the judges in the Judgelink Collaboratory.
This first article is intended to set the stage and suggest some
themes.
A Brief History of Seamless
Webs
A word about the column’s title: Indra’s Net.
Indra is a powerful figure from the tradition of ancient India.
Indra’s net is a vast web with a brilliant jewel at every node. Each jewel reflects all of the other jewels
in a great burst of color. More
than that, the reflection of each jewel reflects all of the other jewels,
and so on in endless sequence.
Indra’s net stands for the interconnectedness
of things. It is the most seamless of webs.
Judges and lawyers are of course familiar with the seamless web
as a metaphor for law. Professor
Ethan Katsh tells us that this metaphor was coined by the English legal
historian Frederick Maitland in 1898 and used at about the same time
by Oliver Wendell Holmes (Katsh, Law in A Digital World, 1995).
Whether intentionally or not, Holmes also drew on Indra’s net years
earlier, in a speech before the Suffolk Bar Association in 1885:
“The Law, wherein, as a magic mirror, we see reflected
not only our own lives, but the lives of all men that have been! When I think on this majestic theme, my eyes
dazzle.”
Indra’s net is thousands of years old. The metaphor
of the law as seamless web is about 100 years old. And now emerge
the Internet and World Wide Web to connect millions of nodes of information
together. Each node has the potential to connect to every other node.
We tend to think of the “jewels” or nodes on the World Wide Web as computers
or lesser networks of computers. But
it is valuable to think of them as the users of these machines–in other
words, as us–in our personal or professional capacities.
We influence and are influenced by all the means of our communication.
Our connections to and through the electronic media are rapidly
becoming more pervasive and trouble-free.
Law and the Internet
The Internet transforms much that it touches.
Business, government, entertainment, education, and the practice of
the professions are increasingly identified with the ubiquitous extensions
.com, .gov, .net, .edu, .org, and so on.
In respect to commerce, the significance of electronic transactions
can hardly be exaggerated. For
example, Forrester Research, a leading analyst of technological trends,
reports that American companies did $43 billion in electronic transactions
in 1998 and estimates that the amount could grow to $1.3 trillion in
just 5 years Andy Gove, chairman of Intel, has said (in
what might be considered a self-serving statement) that in five years,
all companies will be Internet companies, or they won’t be companies
at all (The Economist, June 26, 1999).
Wherever there is commerce there are disputes
and the risk of fraud. E-commerce
will hardly be an exception to this rule.
And where there are disputes and fraud, there courts must also
be as an agent of the public interest to provide a forum for civil dispute
resolution and criminal adjudication in a manner that is just, speedy,
and inexpensive.
It is much easier to say that courts must deal
with misbehaving users of the Internet than to say exactly how all the
traditional legal puzzles are to be solved: jurisdiction, venue, choice
of law. For example, which issues
should be federalized and which subject only to state law, will take
a while to work out. But the pace of case and statutory law development
will be forced by the growth rate of the underlying commercial activity
and consequent growth rate of some sorts of litigation. Moreover,
as we read almost daily, the enterprises supporting and profiting
from the development of Internet are fiercely competitive with each
other, leading to titanic legal clashes.
These disputes require judges
to interpret new and unfamiliar facts and concepts in light of traditional
legal concepts surrounding licenses, patents, trademarks, copyrights,
and antitrust. The turn toward the digital representation of just about
everything solves many problems and creates many new ones.
Judicial administration:
when is a court not a courthouse?
The opportunities and problems offered by new
electronic media extend beyond the substance and procedure of law into the heart of judicial administration.
The use of computers to automate traditional manual tasks of
court administration, of which docketing is perhaps the best example,
has reached a high level of sophistication. It has been just 25 years since the Federal
Judicial Center installed Courtran as a mainframe system for electronic
docketing and related record-keeping in a number of
federal district and appellate courts.
Today, docket sheets
from every district and bankruptcy court are routinely available on-line
to anyone prepared to pay a modest fee.
More significantly, the federal system is testing the feasibility
of moving the docketing function out of the courthouse and into the
law offices as part of a complete electronic filing system. When a lawyer
submits a pleading, he or she will submit additional information that
will become the official entry on the court’s docket for that case.
Orders and other documents initiated in chambers will be transmitted
electronically to parties, with additional information picked up in
the clerk’s office to create the appropriate docket record.
Electronic case filing is just one example of
technology expanding the walls of the courthouse–or perhaps knocking
them down. Teleconferencing,
video-conferencing, legal researching at remote sites like Westlaw or
Lexis are other examples of the dispersing effects of communications
technology on proceedings and tasks that used to be conducted completely
with the brick and mortar walls of traditional courthouses. It is not
an exaggeration to refer to these developments as exemplifying a turn
toward the virtual courthouse.
Conclusion: Getting
Started
What opportunities for improved adjudication and
judicial administration are latent in the concept of the virtual courthouse?
What a are the limits and risks inherent in the concept? These
general questions can be made specific with reference to every function
in the traditional courthouse: the research function of the library,
the calendaring and records-management functions of the Clerk’s office,
the fact-finding and advocacy functions of the courtroom, and the deliberation
and opinion-writing functions of judicial chambers. Here, for starters, is one question pertinent
to each of the four functions.
1.
The Virtual Court
Library: What are the costs and benefits of a uniform non-proprietary
case citation system that would permit every court to place all of its
orders and opinions on line with unique identifiers and devices for
pin-point cites (e.g. paragraph numbering)?
2.
The Virtual Clerk’s
Office: How quickly, if at all, should courts move away from paper and
toward electronic media as the foundation of the official case file?
3.
The Virtual Courtroom:
How should courts allocate budgets between technology that enhances
presentations in traditional courtrooms (e.g. visual displays from electronic
media brought to court on a CD) and technology that disperses the events
of trial in time and space (e.g. establishing remote video connections
to local jails and prisons for arraignments and hearings; facilitating
remote testimony from some witnesses during trial in the traditional
courtroom)?
4.
The Virtual Chambers:
How much of the paper now filed in chambers can be more effectively
and efficiently stored electronically, saving space and allowing the
judge to have total access to chambers’ information from any location
with a phone jack?
These questions may not be the ones most on your minds as you contemplate
the future of your courts in regard to technological opportunities and
risks. If they are not, please choose your own topics and use this space
to begin conversations with each other.
The benefits arising from the time you take to do this will be
well worth it. My colleagues
and I look forward to tuning in and assisting the flow of good conversation
in any way that we can.
Sources
I will to begin with suggest three sources that you may find useful in
organizing your thoughts about these topics.
Two of them are available on line here:
Johnson, David,
and Post, David, “Law and Borders–The Rise of Law in Cyberspace.”
48 Stanford L.
Rev. 1367 (1996). Also at http://www.cli.org
Bermant,
Gordon, “Courting the Virtual:
Federal Courts in an Age of Complete Inter-Connectedness.”
The third reference is a book: Katsch, Ethan, “Law in a Digital World.”
Oxford University Press, 1995.
|
