Attend any conference on digital justice and you’ll hear about smart systems, expert systems and solution explorers, you’ll be told that eBay’s automated dispute resolution program resolves over 65 million cases each year. Access to justice, 24/7, in your pyjamas. Modern and efficient, it gives people what they want.
The future’s so bright, you better wear shades.
Then come the Q and A’s, and someone asks about individuals who don’t have computers, who aren’t computer literate, who won’t be able to effectively represent themselves no matter the amount of online information. “Of course” comes the standard response, “we will need to keep the current. paper based system for some people. But we need to build for the 80% not the 20%. Remember, resistance isn’t just futile, it’s irrelevant.”
The next question comes from an old codger; “we’ve heard it all before – a government modernization initiative. Always presented with great fanfare, and then – failure.”
“yes, that’s true, but we have to embrace innovative thinking: embrace failure. Google and Facebook didn’t achieve their present greatness without going through failures.”
Others, mostly practitioners and judges, don’t bother asking their questions. Not everyone likes the justice system. So, “why would someone who is being sued by their bank freely chose to engage in a voluntary dispute resolution system?”, and “what about 19 year old Indigenous youth who has breached his probation conditions and been arrested for the third time?”, don’t get asked.
The question period ends, and everybody heads for the turkey on focaccia, tuna wrap, and grilled vegetables on gluten free bread.
And so it goes, inevitability vs. vulnerability, excitement vs. cynicism, sustainable justice vs. aspirational justice, with all sides more convinced than ever about what access to justice needs to look like.
The current dialogue about technology and justice feels more like an ideological bun fight than an informed discussion. Like the polarized debates in politics and the media, people seem to yell past each other. Yet everyone brings important things to the discussion, principles and values that are not so antithetical.
What strikes me as somewhat distressing in this unhelpful debate is that all sides (and I have found myself within each at various times), do care deeply about the critical role of law in our democratic society. We bring different perspectives from our experiences.
First, in some ways design and transformative thinking are antithetical to traditional legal training. In the digital world, we are told to take risks, embrace failure, and share power. Lawyers are not good at any of these things. “Move fast and break things” is the Silicon Valley ethic, first coined by Facebook engineers. But for those who work in the administration of justice, we know the things that get broken are usually people and communities who were seeking a voice, fairness and justice, not simply an efficient answer. We also know that plain language will never make a complex legal issue a non-legal issue.
Second, there are those who welcome technology, but just not in their professional domain. Reacher Susskind, in his book, The Future of the Professions, notes some interesting things. When interviewed, most professionals – lawyers, doctors, accountants – can easily see how technology can replace significant options of professional work, but just not in their professions. No doubt some of this is due to commercial self-interest, but I think that many lawyers truly believe that using technology to equip the public for self-help is risky and unethical. As a friend of mine says, there are a lot of sharp legal objects out there.
Third, many of us cannot imagine a computer making judicial decisions, take for example the question of whether algorithms can judge. Many people would say not. Judging takes empathy, not just an understanding, but an experience of what it means to be human. Yet decision making is all about probabilities, based on evidence (data) and computers that without question have better capacity to assess more information, more quickly and more precisely. And computers can sift through more precedents than any human judge ever could.
Finally, absent from these discussions is the reality of how many individuals identify and seek advice about their legal problems issues. The answer is a variety of ways. This has always been the case. Community workers, health care practitioners, religious advisors, and now, yes, the internet. Most people don’t go to lawyers. We need to recognize this reality – not only because it is the reality, but because integrating and supporting alternative networks provides an important, valuable resource.
Perhaps we need to start with more respect for what we each bring to the digital justice discussion, not only perspectives, but styles. We need to chunk down what can usefully be done by technology in its current form, and be somewhat skeptical of overly confident digital inevitability. Web 2.0 hasn’t turned out as predicted. Facebook and Google are already starting to backtrack in numerous ways. Recent changes around net neutrality may further widen the digital access divide.
Still, surveys show that the public feel the justice system is out of date, and there are lots of committed folks working on engaging projects, large and small. In Europe and in other jurisdictions, there is far greater collaboration between the bench, the bar and the tech community. If we believe the Canadian justice system is so precious, so fragile that it can’t sustain a vibrant dialogue, then perhaps someone needs to burst our bubble.