The trouble with the Supreme Court’s go-slow approach to tech

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Chief Justice John Roberts published a report on the judiciary this week, and much of his meditation focused on technology, and courts’ historical reluctance to adopt it. He described, for instance, how the Supreme Court’s use of pneumatics (sending documents around via vacuum tubes) led a reporter in 1968 to describe the process as “perhaps the most primitive … in the entire communications industry.”

The tubes were finally removed in 1971, but the Supreme Court continues to go slow on other technologies. It won’t be until 2016, for instance, that the top court will begin to offer an internet-based filing system, according to Roberts. In the meantime, paper will be the only option.

For the Chief Justice, however, this plodding pace is a virtue:

Like other centuries-old institutions, courts may have practices that seem archaic and inefficient— and some are. But others rest on traditions that embody intangible wisdom. Judges and court executives are understandably circumspect in introducing change to a court system that works well until they are satisfied that they are introducing change for the good.

As technology proceeds apace, we cannot be sure what changes are in store, for the courts or society generally.

In some ways, Roberts is right. Courts are the antithesis of Silicon Valley startups, and must take the long view of important issues, including technology. What if the judiciary had swallowed the Valley’s 2013 views of wearable tech, and issued Google Glass to every sitting judge?

Roberts also makes a very good point about how the judiciary’s unique security situation affects tech adoption. As he explains, courts receive incredibly sensitive information, from criminal conspiracies to trade secrets, and their decisions can move markets. It would be disastrous to the country’s security and economy if Sony-style hackers could root around in internal court networks. (Fortunately — and perhaps ironically — the Supreme Court’s archaic paper practices means it may already be employing “air gaps” of the sort preached by IT security types).

Overall, however, the Chief Justice’s outlook on technology is unsatisfying. That’s because, in the interest of burnishing the mystique of the judiciary, Roberts misses an opportunity give the federal court system a much-needed kick in the rear.

A preference for paper

Rather than call attention, for instance, to the sorry state of the courts’ PACER system, which was subject to scandals over pricing and disappearing documents in 2014, Roberts concludes his article by waxing on about the tortoise-and-hare sculptures surrounding the court.

He also appears to miss the point when it comes to the internet’s potential for access to justice. In a well-meaning but odd comment, he suggests that the court must think of those who scribble out paper pleas (emphasis mine):

Unlike commercial enterprises, the courts cannot decide to serve only the most technically-capable or well-equipped segments of the public. Indeed, the courts must remain open for those who do not have access to personal computers and need to file in paper, rather than electronic, form.

Roberts’ comment is puzzling since even the most indigent will likely have some form of internet access by 2016, and because it assumes that trudging up the Supreme Court steps in Washington with an armful of paper is somehow more accessible than an online platform. Meanwhile, the Chief Justice completely ignores how courts’ failure to provide electronic access deprives impoverished litigants of the caselaw that is indispensable for persuading a judge. (Update: as law professor Orin Kerr notes, Roberts may have been contemplating prisoners without internet access).

And finally, the Chief Justice elides the fact that the reason that many judges stay tuned out to tech is simply because they can. For them, as for many older people, technology can be bothersome and intimidating, and day-to-day work life is easiest by doing things the same way one has always done them.

This is a problem, however, given that many of the most pressing legal and social issues we face today revolve around technology: NSA data-plundering, Facebook privacy policies, and borderless cloud computing are just some examples of how technology looms even larger today than it has in previous eras. And judges are the ones who have to sort out what the rules should be — rules that will be much better if the people making them are familiar with the tech they’re talking about.

Who gets it right

The good news is that some judges are already doing an excellent job of this. U.S. District Judge William Alsup, who taught himself Java before a huge Google-Oracle trial, is one example. So is his Northern California colleague, Lucy Koh, for whom Facebook is as familiar as the Federalist Papers.

Meanwhile, Roberts and the other Justices of the Supreme Court, in recent rulings on cell phones, have shown they (or their law clerks) get the implications of new computer technology. And if you want to see a court doing it right, the state of New York’s SCROLL system provides free and easy access to many documents — there’s no reason other courts can’t too.

Overall, though, courts across the country are woefully behind in using the internet to offer information and, with it, access to justice. Chief Justice Roberts missed a chance with his report to show some leadership, and force more judges to participate in the internet age. Here’s a copy of the report, which is worth reading in full:

Chief Justice 2014 Report

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A point of clarification: When this article says that the “courts’ failure to provide electronic access deprives impoverished litigants of the caselaw that is indispensable for persuading a judge”, the author seems to be implying that an electronic case filing/management system is an appropriate tool for litigants to use in locating case law. As a specialist in the realm of legal research, I can assure you that this is very much not the case.

An eletronic case filing/case management system is an online system that is used to submit and collect documents such as briefs and motions that pertain to one specific case that is in the proccess of being litigated. These cases do not yet have decisions attached to them. In order to find court decisions, researchers must use a database that is set up for researching pertinent case law (and other relevant legal authorities). These are called legal research databases, and they are entirely different than case filing/ management systems. There are a number of these legal research databases available, but the big two go by the names of Westlaw and Lexis. Neither the courts nor any other government agency has EVER created or made publicly available a legal research database. This has always been the realm of private industry. Whether or not this is a desireable situation is another question for another time, but the fact remains that this is the current situation.

Litigants or other people doing legal research who are unable to afford a subscription to one of these privately operated legal research databases have the option of going to a local law library and accessing legal research resources there. In addition to being attached to law schools, law libraries can be found in courthouses, and as free-standing institutions as well. California, for instance, has a system wherein each county contains a law library that is open to the public. Other states do much the same thing. These institutions are not only information resources, but also employ legal research experts who can help litigants find the information that they need.

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