The darker side of digitization

Last week, New York City hosted this year's LegalWeek - an annual, multi-day congress on the digitization of the legal industry. After two years of absence due to the pandemic, many sessions revolved around the question of what impact COVID-19 has had on digital development. This question is as difficult to answer after the pandemic as the prophecies in this regard were before. I would like to share two interesting aspects from the event reports here.

First, in his article published on law.com, Rhy Dipshan argues that the demands on judges are increasing as the use of technology in the courts increases. The panel was not at all concerned with fancy understanding of the mechanisms of artificial intelligence. Rather, the focus is on ostensibly trivial mechanisms such as the questioning of witnesses via video call (zoom, etc.). Judges should pay more attention to the setting and the possibilities it offers to parties and party representatives.

Concern was caused by the thesis that the  digitization of the judiciary does not actually improve access to justice, but rather restricts it. Often, it is a matter of simple things like access to basic technology. There was mention of a family court that had entered into a cooperation with a local church, where litigants were given access to the Internet in digital kiosks in the first place. This would be a surprising symbiosis of state and church, which is worth reflecting on further - which brings us back to Lent.

Lent

A week ago, Catholics began this year's Lent. It lasts 40 days, but only because they do not count Sundays; in reality, it is 6 ½ weeks. Today, Lent is mainly equated with abstaining from alcohol, nicotine and fatty foods. In truth, however, it is a time for reflection and inner contemplation. Even if the current geopolitical situation with Russia's war of aggression against Ukraine is not suitable for finding inner peace, I would like to briefly apply the idea of renewal to the legal profession and its tools.

One mantra of legal digitization is as follows: Law firms should standardize their processes for reasons of cost reduction and quality assurance and make use of commercial tools ("LegalTech").As a result, the same texts would then be used by many law firms for frequently occurring processes, and at a lower cost accordingly.

After a bit of introspection, however, one could also say: from a third party's point of view, this may be desirable and sensible, but is it enforceable? Obviously, there are major hurdles, otherwise the numerous systems on the market would already have become more widespread. This need not come as a surprise, because which company will agree to changes that make its own market performance interchangeable without massive pressure? Certainly, it is then argued that it is not about "bespoke lawyering", but about the surrounding - but what if the surrounding earns the greater part of the rent in one or the other law firm?

One need not be surprised that the various text generators and clause managers are primarily found in the legal departments: there are similar cases there in high frequency, and the legal departments are not in competition with each other.

08:30 am

At 23:00 CET, Russian television broadcasts President Putin's declaration of war on Ukraine. NATO's reaction: it tries to convene an emergency meeting for 08:30 the next day.

One can easily imagine Vladimir Putin trembling before this reaction. But that is not the topic here, rather the question, what connection does this geopolitical process have with LegalTech and the development of democratic legal systems?

Quite simply, even in 2022 the fast eat the slow. And even if there is no public discourse about it, there are parallel processes. For example, the enforcement of small claims, which have largely migrated from the courts to dispute resolution systems such as Ebay. Does anyone wonder if this abandonment of state authority is actually desirable? No, we are drowning in ethical discussions about blockchain, even though it has the potential to further erode the democratically legitimized rule of law.

Deluded warlords and technological developments have surprising things in common: Those who usurp the law of action have a clear advantage. Contemporary democratic structures tend to be at a disadvantage.

Mandatory vaccination as a prototype for digital legislation?

Recently, I reflected here on possibilities to (partially) automate the legal system by using machine-readable language. As chance would have it, just in these days the current work of a Viennese doctoral student of law became known, who has set an initiative in this direction:

Since the beginning of February, the so-called "vaccination obligation" against COVID-19 has been in effect in Austria. But what does "in effect" mean. The associated law and the implementing ordinance issued on the basis of the law comprise a total of 35 paragraphs with countless subdivisions (paragraph, numbers) - not a text from which one can see at a glance how a particular circumstance is to be classified.

On his Website impfpflichterfüllt.at Paul Eberstaller leads the questioners with few, simple questions by the topic and offers at the end a clear answer: the inoculation status is valid or not valid. According to his own information, he needed only four hours for the development.

And now I wonder: compulsory vaccination is one of the most hotly debated topics in Austria because it deeply interferes with people's right to self-determination. If it is possible, even in this highly sensitive area, to formulate legal regulations so clearly that specific facts can be measured against them mechanically - why does this exception not become the rule? This would serve everyone!

About the child and the bath

Since it recently became known how great the influence of politics is on the appointment of top judges (and all top administrative posts) in Austria, the Republic has outdone itself in cries of horror and suggestions for improvement.

The undermining of the separation of powers through massive party-political influence on the appointment of higher-ranking judges is, of course, to be condemned. Nevertheless, the general outrage is unjustified. This system has existed at least since the Second World War; it is even partly stipulated in the constitution. What is new, at most, is that "evidence" is on the table for the first time. In any case, many of those who are raising their voices today have themselves come to their top function in precisely this way. Presumably, they are also too young to still remember the clarification of the AKH scandal.

It is also exciting that only coalition parties and members of the federal government are ever mentioned. Yet it is precisely the Federal President who, as an elected politician, has the last word according to the B-VG - and highly respected former Federal Presidents knew how to make extensive use of this possibility by a simple trick: they perfected the art of not signing.

So now, according to one proposal, judges and prosecutors should only be able to be appointed by judicial nomination during their entire career path. At first glance, this sounds tempting, but it overlooks two key facts:

First, judges are human beings, too, and thus not free of political persuasion. Influence, which will certainly continue to be desired by politicians, then shifts to another level.

Secondly, with all due respect and completely disregarding the specific individuals currently acting, the following should also be considered: Systems, which complete themselves exclusively from themselves, tend generally to petrification. Not every passing over of a line-up proposal has to be politically motivated, there can also be solid reasons for it. In any case, quite abstractly, and again emphasized, without looking at any concrete persons, it cannot be assumed that change agents make it into those positions in the judiciary and the administration of justice that enable them to have such an effect even if the "system" itself decides on its supplementation.

So much for the cause and for the sake of the cause. There are certainly ways to unite both goals in a meaningful and objective way.

Justice as a gamechanger

Today I was interviewed by the agile Nerds of Law Katharina Bisset und Michael Lanzinger for their podcast. As often, the question was, will legal tech become more widespread? What will that mean for the legal profession?

For the most part, there are fairly balancing answers to that question. For once, I'd like to spin a polarizing thought:

"The gamechanger" par excellence in Austria was the justice system. It began deep in the 20th century with the introduction of the form-based dunning action and the digitization of the land register, and a little later the company register. Mandatory electronic legal transactions with the courts gave Austria a decades-long head start. What if the justice system were once again the driving force, and what might that look like?

A thought experiment: laws would be written in machine-readable German, i.e., with clear logical relationships and well-defined terms. There would even be room for discretionary leeway, but we would have to dispense with undefined legal terms and systematic loopholes. The jurisprudence of all courts would be analyzed in depth by machine and connected to the new laws by means of connectors. THAT would be a game changer, but one that would not please many of those involved in the legal system (lawyers, judges, even experts), because many court proceedings could be automated or simply eliminated.

Is the idea absurd? No, research on legal language is plentiful. The bigger issue would certainly be the connection of the jurisdiction, but at least it would not fail today because of the computing power.

Not to be misunderstood: This is not a proposal, but a thought experiment. But the underlying thesis is a fact: Digitization in Austria runs through the justice system!

Digitization of the judiciary: Now!

In Austria, an obligation to be vaccinated against COVID-19 is to be stipulated by law. Needless to say, this plan is polarizing opinion. Recently, the professional association of judges and public prosecutors expressed its position on this issue. In addition to constitutional concerns, the issue is the immense additional burden on the courts resulting from the expected appeals against penal decisions. There is talk of a 6-digit number of additional proceedings "threatening" the administrative courts and supreme courts. 

The concern is certainly justified. One does not have to be a prophet to foresee that this wave of complaints will be steered on the one hand by certain political parties, but also by the legal profession. And there the question of resources does not arise? No, because these complaints will certainly be handled with a high level of technological support. Just as in the case of flight delays or fines for speeding.

These resources must also be available to the authorities! The cases will resemble each other or can be typified, the arguments will be repeated. If lawyers manage to build up the necessary infrastructure - why should the judiciary not be able to do so?

It is certainly not a financial question. Probably a legal one, but the lawyers on the other side are also obliged to personally authorize each and every appeal, and the relevant case law of the Administrative Court is well known. But of course, it also requires the willingness of judges (and politicians) to accept technological support. If compulsory vaccination actually becomes law, typical mass proceedings must be expected. The timing for a digitization push in the judiciary could not be better.