Technology and the Future of the Courts

By Allsop, James | University of Queensland Law Journal, June 2019 | Go to article overview

Technology and the Future of the Courts


Allsop, James, University of Queensland Law Journal


I INTRODUCTION

Technology is woven into our daily lives. It is the now, and the future. One does not need to look too far to see mistaken disregard of technology in the past. Take the Western Union electrician who, in 1876, sent the company president an internal memo claiming that '[t]his "telephone" has too many shortcomings to be seriously considered as a means of communication. The device is inherently of no value to us.'

As core public institutions, courts need to take a leading role in the responsible implementation of technology in the law and in legal practice, with a specific emphasis on problem-solving and the facilitation of the just resolution of disputes in a quick and inexpensive manner, while still maintaining the fundamentally human character of the courts. The uptake of technology is not about the use of buzzwords.

In the pages that follow, I look first at the role of the court in the uptake of technology. I then turn to look at what has been achieved, what could be achieved, and some lessons learnt along the way. Finally, I discuss the three core outcomes that technological uptake should address, and some of the challenges that may arise (or have already arisen): (a) practical obstacles to implementation, including the need for behavioural change across the profession; (b) ensuring access to (not obstruction of) justice; and (c), perhaps most critically, the implications of the use of big data and artificial intelligence ('AI') for public trust and confidence in the courts as public institutions.

At no point do I want to sound cynical when I discuss these challenges. I am not. There are always going to be challenges when developing and improving a deeply ingrained system or way of doing things. Knowing what these challenges may be and how to address them will enable better policies and processes to be implemented.

II ROLE OF THE COURTS

Courts are human institutions. I have referred to the courts in this way before. (1) In my view, the human element of institutions, especially public institutions, is too often neglected.

Courts are public institutions made up of people. Their purpose is the exercise of public governmental power of a special, protective kind: the judicial power. This power is the manifestation and application of equality before the law, impartiality (both substantive and apparent), the rights of parties to properly ventilate and respond to disputes and allegations against them, and the fair and (as far as possible) correct determination of questions of fact and law. These are not quantifiable features; they are not reducible to statistics and metrics. They are not fully digitisable. As Chief Justice Kiefel noted in a keynote address at a recent Australian Bar Association national conference, it is a human ability to evaluate complex evidence and apply nuanced legal reasoning to cases past and present with competing possible outcomes. (2)

By saying the courts are human, I mean that courts involve human reasoning and emotion, and that the courts are humane, but there is also something more. To explain this, I need to come to the topic of the abstractionism and deconstruction of whole human thoughts, human values, and human institutions into what is seen as their taxonomically organised and abstractedly expressed constituent parts. There is a modem cast of mind in deconstructing a whole proposition into a series of abstracted definitional propositions. The impetus is often a sensible one, perhaps to 'unwrap', as is sometimes said, the constituent elements of a whole idea or entity. From that process one may well get valuable insight, but the process often goes further, past insight or explanation, to definition through abstraction. The deconstructed parts then stand as the default, the re-presentation, of that human whole idea or human whole entity. For instance, instead of describing the fairly straightforward human traits that make up a good judge using language that is experientially based--intelligence, experience, legal knowledge, decency, fair-mindedness, patience and balanced good judgement--some would define these human qualities in an abstracted hierarchy or framework using language that is abstractedly definitional. …

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