The courts, the Internet, e-filing and democracy.

• Author: Kopf, Richard G.
• Position: Forum: Democracy & the Internet

Why would the editors of a Canadian law journal contact a judge from the high plains of the United States about writing an article centered on the Internet? (1) The probable answer is this: I shot my mouth off in a blog about the importance of the Internet to legal scholarship. (2) The editors may also have learned that I oversaw the first federal trial court in America to require lawyers to use the Internet in all civil and criminal cases as the exclusive method of filing. (3) Perhaps the editors also discovered that as a part of that same process, we required judges to file everything they wrote electronically. Undoubtedly, they also figured out that the public has access to our system.

Thinking that a big mouth, particularly one with a penchant for rocking the boat, might provide them with good copy, I speculate that the editors threw out an invitation betting that my ego would compel me to bite. It (id?) did, and I did.

With those preliminaries out of the way, what do I have to say? Well, the editors want a short opinion piece that addresses some aspect of "Democracy and the Internet". (4) They say it can be "lightly footnoted". I suppose they want me to give a judge's take on their open-ended proposition. Here goes:

WARNING

I caution that the following discussion wanders into the abstract, the space is limited, and my thoughts (like the Net) are loosely connected. Moreover, my target audience is comprised of lawyers, judges, and academics who wonder about the proper place of courts in a democratic society. This is a painfully sober topic addressed to an equally sober bunch. The foregoing notwithstanding, I will keep it light.

"E-Filing" as an Example

Let us imagine that you could develop a system where a lawyer or a judge, sitting at home or at the office or while on a trip to Indonesia, could file his or her court documents over the Internet and without paper. Likewise, lawyers and judges could review the documents pertinent to their cases at anytime of the day or night and from anyplace in the world. Let us call it the "e-filing" system.

These filings would include pleadings, briefs, opinions, transcripts, exhibits, and all the other miscellaneous detritus of the judicial biz. They might even include digital audio or digital video recordings of depositions or trials. Still further, assume that what goes into the e-filing system is searchable. That is, specific information can be located within, and retrieved from, the mass of stuff that has been filed. Assume also that an authority (maybe an article in this Journal) is cited by a judge in an opinion or by a lawyer in a brief. If hyperlinked to the Internet, the reader might easily access the full text of the citation by simply clicking on the link in the brief or opinion while that brief or opinion is being reviewed online. Most important to this discussion, let us also suppose that this e-filing system can be accessed over the Internet by the public. If that is so, any member of the public with a computer and connection to the Interact has the power to peer into any "court file" at anytime of the night or day.

There are e-filing systems in place now (or there will be shortly) that can do all or most of the things I have just described. These e-filing systems provide a concrete context for what follows. (5)

Like Love and Lingerie, Democracy Works Best When Judge-Made Law is (Somewhat) Transparent

The law is mysterious to most folks. (6) In some ways, that is just fine. After all, those of us who are lawyers, law teachers, and judges enjoy a monopoly as a result of that mystery. Having been handed a pretty good living as a result of this closed and opaque market, I am not about to get too riled that ordinary people have only a modest opportunity to pierce our niche.

But even the most predatory monopolist can have pangs of conscience, and so, I next write a little about the "greater good". My premise is simple: Using e-filing as an illustration, a court finds its proper place in democracy only when the court is transparent. Because e-filing systems allow anyone with a computer to watch the making of our judicial-sausage, the public-observer is able to see (if not smell) virtually every ingredient we put into it. Unless you are terribly jaded, this is a big deal. (7)

Power to the People (8)

As democracy has expanded and evolved over the last two plus centuries, lawyers, judges, and law professors have spent a lot of time trying to figure out the proper place of...