David Freeman Engstrom (Stanford Law School) and R.J. Vogt (Stanford Law School) have posted “The New Judicial Governance: Courts, Data, and the Future of Civil Justice” (DePaul Law Review (Clifford Symposium), Forthcoming) on SSRN. Here is the abstract:
The pandemic has accelerated the digitization of American life, and the civil justice system is no exception. Online legal proceedings and ODR, long the stuff of futurist proclamations, have finally reached critical mass. Lawyers, forced out of their offices and comfort zones, are embracing legal tech tools like never before. And the pandemic, by sharpening concern about access to justice, has spurred renewed efforts to relax the bar’s monopoly on legal services and welcome new providers, including tech-based ones, into the system.
But sitting beneath these tech trends is a deeper set of challenges and opportunities that will powerfully shape the civil justice system’s future. Indeed, what binds the trends together is that each promises to increase the amount of data in the system, data’s centrality to the system’s workings, or both. A key question for the future, then, is whether the civil justice system—and, in particular, the courts that oversee it—can manage and harness new data flows in ways that promote the just, equitable, and efficient administration of justice.
Confronting that question, this Article offers a roadmap of the courts’ emerging data governance role. In particular, we outline three roles that courts will increasingly play as digitization and datafication deepen throughout the civil justice system. First, courts will be data users when they harness new data flows to study and improve their operations, or when they design and oversee specific data-based tools, such as legal help chatbots or ODR systems. Second, courts will be dispensers of data when they collect the ever-growing amount of digital material generated by the legal system and set the terms on which outside actors can access it. Third, courts will be regulators of data—particularly others’ use of data—when they determine which software providers can, or cannot, provide legal services consistent with existing lawyer regulation and rules. Sizing up this new digital landscape, this Article identifies some of the core challenges inherent in these new judicial governance roles and offers some initial thoughts on how courts might meet them.