Online Judging

The most controversial and, for some, the defining feature of the first generation of online courts is that judges hear arguments and evidence, come to their decisions, and then make these determinations known to the parties and to the world at large without setting foot in a physical courtroom. This comes about if parties are unable to dispose of their dispute on Tiers 1 or 2. They then progress to Tier 3, the home of ‘online judging’.

The Computer Judge

What mutton-headed, technologically myopic luddite said this? I confess that these are my own words, as they appeared in 1986 in the Modern Law Review. Although this was comfortably more than thirty years ago, I can recall quite vividly what was going through my head (for want of a better term) when I wrote that passage. Today, I disagree with much that I said then. Emotionally, I no longer have any sense of horror in contemplating the possibility that judges might roundly be outperformed by machines. Technically, the passage of time has put me out of date. Computers often can (in some constrained circumstances) satisfactorily process speech and natural language. I also failed (along with most computer scientists) to predict that many of the remarkable advances in computing would come not through explicitly programming systems (whether, for example, to exhibit political preferences or creativity) but through machines ‘learning’ from vast sets of accumulated data. Morally, when I spoke of the values of western liberal democracy, I was reflecting the mood of the late twentieth century. As technology advances, it transpires, as Jamie Susskind explains in Future Politics, that our political conceptions change too. Liberal democracy in the twenty-first century may be significantly different from its ancestor.

Access to Justice

Two related phrases are commonly used in discussions about the courts and judges. The first is ‘access to justice’ and the second is ‘justice according to the law’. Like motherhood and apfelstrudel, these seem to be ideals whose merits are beyond debate. However, some deeper digging suggests that the scope and meaning of these concepts are far from self-explanatory. They are innocuous enough as terms of art, and often deployed to lend some force or lustre to arguments about social and legal reform. But if we are to be clear about online courts and the future of justice, we need to be clearer about these fundamental notions. Accordingly, in this chapter, I explore and extend the concept of access to justice, arguing that much of the literature and debate on this topic is too narrowly conceived. I defer until the next chapter the notion of justice according to the law, where I argue that this is also a more complex notion than is generally allowed.

Justice According to the Law

In both promoting and challenging the idea of online courts, appeals are often made to the concept of justice. Supporters generally say that online courts will bring about greater access to justice, while critics foretell that justice will be denied. Given that ‘justice’ is so widely invoked in debate about online courts, it is important to clarify what this notion itself is all about. If you are neither a philosopher nor a political theorist, you may think that justice is a pretty straightforward concept. But it turns out that the term is used in many different and conflicting ways, and even when people have the same conception of justice in mind they can disagree strongly over what it requires.

Assisted Argument

Although it is not a defining purpose of online courts to exclude lawyers from the process of litigating, they are generally conceived as a service that can be used without formal legal representation. If we are to introduce an affordable public online dispute resolution system, it makes sense to relieve parties of the expense of lawyers. However, if lawyers are not advising, how can litigants set out their stalls and make their legal arguments on their own? In Chapter 11, I discuss tools and methods to help lay people organize and classify their cases (turning a grievance into a justiciable problem) and to analyse and reason (coming to a legal view). I turn now to another self-help task that lay people must take on as users of online courts, that of arguing and persuading—presenting a case to a judge on Tier 3 (and conceivably, in a less formal way, to case officers on Tier 2). Of all the challenges that arise in the design and development of the first generation of online courts, here is perhaps the most forbidding. How can non-lawyers with no legal experience be expected to argue and persuade when barristers spend a lifetime mastering this skill?

Why Courts Matter

Modern courts can be traced directly to bodies that came into being around 900 years ago. Today, they sit at the heart of all democratic societies, undertaking a remarkable variety of work. They handle quarrels amongst citizens, disagreements within families, conflicts between individuals and the state, and disputes between businesses. They determine the guilt or innocence of people accused of crimes and they settle sensitive questions of national security. In resolving disputes, judges apply the law when it is clear, bring clarity when there is uncertainty, develop the law (to some extent) as changing circumstances require, and set precedents that influence later cases. The judgments of courts differ from all other decisions in society—they are binding, enforceable, and backed ultimately by the coercive powers of the state.

Emerging Technologies

By 2030, and possibly much sooner, our courts around the world will have been transformed by technologies that have not yet been invented. I cannot of course prove this, but given the scale of the financial investment and human effort being directed at court technology and at artificial intelligence (AI), this seems to me a far more likely outcome than the moderate change that most lawyers and judges might project. Today, we are surely at the beginning of an inevitable technological transformation in our court and judicial services. In this fourth and final part of the book, I go much further and predict wider developments for online courts. First, in this and the next two chapters, I explore various emerging technologies and consider their likely impact on online courts. Second, whatever technologies may be involved, the most ambitious use of online courts will be their deployment in increasing access to justice across the globe. That is the subject matter of the final chapter of the book.

Physical, Virtual, Online

Modern court systems can be traced directly to bodies that came into being around 900 years ago. There were of course much earlier courts (for example, the rabbinical courts known as ‘Sanhedrin’, in the first century BC) and certainly there were people in antiquity performing decision-making roles that we would recognize today as judicial in nature (in the works of Aristotle, for instance, and the magistrates and jurists of classical Roman Law). But today’s judges in England and Wales descend more directly from their predecessors of the twelfth century who, in the first instance, were court officials charged with the responsibility of advising the King on the resolution of disputes. Henry II (1154– 89) formalized proceedings and laid the foundations for the modern justice system by establishing an assembly of twelve local knights to settle disagreements over the ownership of land.

Tackling Injustice

With the building blocks of ‘justice according to the law’ now to hand, the task in this chapter is to shift emphasis and argue that policy-makers and activists who seek beneficial change should focus as much on reducing injustice as pursuing justice. I do not wish to abandon or discourage the pursuit of justice, but I fear if that is our only strategy, we are running two risks. The first is that we will fail to bring about the just arrangements and institutions to which many philosophers and lawyers refer when they speak about justice. The second risk is that, if we set our sights only on achieving some broad aspiration of justice, we might not effect any meaningful change at all.

The Case for Change

More people in the world now have access to the internet than access to justice. According to the Organisation for Economic Co-operation and Development (OECD), only 46 per cent of human beings live under the protection of the law, whereas more than 50 per cent of people are now active users of the internet in one way or another. Annually, one billion people are said to need ‘basic justice care’ but in ‘many countries, close to 30 per cent of problem-owners do not even take action’. As for public funding of legal and court services, it was found in a leading global study of legal aid, involving 106 countries, that around one-third ‘have not yet enacted specific legislation on legal aid’ and that the ‘demand for legal aid for civil cases is largely unmet in most countries.’4 Meanwhile, the courts of some jurisdictions are labouring under staggering backlogs—for example, 100 million cases in Brazil (as noted), and 30 million in India. Even in those legal systems that are described as ‘advanced’, court systems are under-resourced, and the resolution of civil disputes invariably takes too long, costs too much, and the process is unintelligible to ordinary people. The broad case for change is self-evident—in varying degrees, the court systems of our world are inaccessible to the great majority of human beings.