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Cite as: HOW STRUCTURAL FEATURES OF THE US JUDICIAL SYSTEM HAVE AFFECTED THE TAKE-UP OF DIGITAL TECHNOLOGY BY COURTS , Martin , European Journal of Law and Technology

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HOW STRUCTURAL FEATURES OF THE U.S. JUDICIAL SYSTEM HAVE AFFECTED THE TAKE-UP OF DIGITAL TECHNOLOGY BY COURTS

Peter W. Martin [1]

Cite as: Martin P.W., “How structural features of the U.S. judicial system have affected the take-up of digital technology by courts”, in European Journal of Law and Technology, Vol. 1, Issue 1, 2010.

Abstract

Given the centrality of information and communication to the activities and institutions of law it is not surprising that during the early turbulent days of the digital revolution enthusiasts imagined that the new technology would work dramatic changes on this critical sphere, changes far greater in magnitude than those flowing from such past innovations as calculators, tape recorders, or copy machines. Students of government and consultants drew analogies between transformations taking place in the private sector (the emergence of e-commerce and distributed, virtual enterprises) and what governments might or should or would become (e-government). Greater efficiency, improved accessibility and performance, and even gains in public accountability were predicted.

Judged against such visions and the changes digital technology has brought about in important commercial areas over the past decade, the take-up of digital technology by U.S. courts has been both slow and uneven. This chapter examines some of the institutional factors that produced this result.

1 Introduction

Given the centrality of information and communication to the activities and institutions of law it is not surprising that during the early turbulent days of the digital revolution enthusiasts imagined that the new technology would work dramatic changes on this critical sphere, changes far greater in magnitude than those flowing from such past innovations as calculators, tape recorders, or copy machines. Students of government and consultants drew analogies between transformations taking place in the private sector (the emergence of e-commerce and distributed, virtual enterprises) and what governments might or should or would become (e-government). Greater efficiency, improved accessibility and performance, and even gains in public accountability were predicted.

Judged against such visions and the changes digital technology has brought about in important commercial areas over the past decade, the take-up of digital technology by U.S. courts has been both slow and uneven. This chapter examines some of the institutional factors that produced this result.

2 Three technology-based reforms that crystallized during the late 1990s

Three applications of the new technology to the work of courts furnish the basis for this investigation. In order, the chapter examines the extent to which U.S. court systems have: 1) adopted new modes of case citation that do not depend on print law reports; 2) assured the availability of adequate and consistent online legal information to all judges; and 3) transformed litigation from a process carried out by means of paper filings, paper orders and judgments, held and ultimately archived in official paper records, to one reliant on electronic filings and data.

2.1 Medium-neutral citation

In the U.S. judicial opinions constitute crucial legal authority for judges, lawyers, or anyone else seeking to determine the law on a point or advocating for a particular view. Because of the country's common law heritage they carry particular weight. So long as print was law's dominant publication and research medium, citations to specific opinions and particular passages within them were, quite naturally, based on their location in one or more sets of print law reports. A single commercial publisher of such reports, the West Publishing Company, produced a set (the National Reporter System) that provided comprehensive coverage of all U.S. appellate courts, state and federal. A declining number of jurisdictions also produced or sponsored their own 'official reports.' In those jurisdictions, lawyers were typically directed by rule or custom to cite by reference to the volume and page numbers of those non-proprietary reports, followed by parallel references to the West volumes.

As online research systems matured, first Lexis and then Westlaw, their designers came to view the inclusion of standard print-derived citation data as critical to market acceptance. Litigation between the two over whether Lexis could insert page numbers drawn from West's reports in its database of opinions without infringing copyright marked a turning point in their competition. The suit allowed Westlaw to catch up with Lexis and, ultimately, forced Lexis into a costly, though exclusive, licensing agreement. It also yielded a federal appellate court decision supporting West's copyright claim which the company used to threaten a later wave of electronic competitors. [2] As new forms and sources of digital publication arose during the 1990s, that litigation stood as a high profile reminder that citation norms tied to West's law books posed a significant barrier to competition.

By the 1990s most courts were producing their opinions electronically and could as a consequence release them in that form. CD-ROM and then Internet publication offered attractive means of increasing competition in law publishing. Cohorts of younger lawyers, trained on Westlaw and Lexis, were conducting case law research without resort to books. These factors led the Supreme Court of Louisiana in 1993 to adopt a new system of citation. It consisted of two key features. First, rather than leave the attachment of citation data to a print publisher the court would embed them in opinions at the time of their release. That meant that publishers (and lawyers) did not have to wait for an opinion's complete and enduring citation until it was assigned volume and page numbers in a print publication. Second, since citation data originated with the court and were bound up with each opinion, they came encumbered with no proprietary claims and could be used by any and all publishers, print or electronic. The idea, fiercely opposed by the West Publishing Company, spread quickly, particularly among law librarians who were attracted to the prospect of greater competition in the legal information market. Serious proposals for medium-neutral citation were brought before several other state supreme courts. [3] They were refined and endorsed by the American Association of Law Libraries in 1995 [4] and the American Bar Association in 1996. [5] Both organizations advocated strongly for this reform.

The model format emerging from these successive deliberations was straightforward and, for an appellate court at least, easy to implement. It required assigning each opinion a unique identifier consisting of the year, a court designation, and a number. The insertion of paragraph numbers provided the means of citing to specific passages. At roughly the same time, reports advancing comparable schemes of citation reform appeared in Canada, [6] Australia, [7] and other common law nations.

During the years immediately following, several states responded to the call. In 1999, drawing on that experience, the chief justices of the nation's appellate courts endorsed a committee report that addressed the issues involved in making the switch. [8] While declaring that whether any jurisdiction should 'adopt such a system' lay outside its scope, [9] the report's overall message was encouraging.

2.2 Judicial access to online legal information

By 1990 two comprehensive online libraries of primary law sources were on offer in the U.S., Lexis and Westlaw - on offer and beginning to supplant print resources. By the mid1990s large firm lawyers were accessing Lexis or Westlaw from their desktops. A 1998 American Bar Association survey established that a majority of those lawyers had come to prefer electronic legal research to print. [10] The same year Westlaw and Lexis moved to the World Wide Web. That enabled them to present most, if not all, the value delivered by format in print law reports. The standard browser interface, plus full text search, an ability to move from a citation to the referenced document with a point and click, immediate access to a citator, and numerous other advantages of the digital environment rapidly and inexorably pulled lawyers and judges away from print libraries. Unconstrained by the economic and spatial limits of book publication, these two systems also gathered and offered decisions that did not circulate in print. At the same time and, in part, as a consequence, print library collections began to erode under the pressure of rapidly climbing prices. Shrinking demand for print fed that climb.

These developments combined with competing offerings from a new set of electronic publishers focused on the law of individual jurisdictions and the pervasive use of computers in other aspects of law practice had, by the end of the century, placed electronic case research in the hands of a large majority of American lawyers in all segments of the practice. [11] Patently, judges and those doing legal research for them required equivalent access, and depending on court organization that put pressure on court administrative offices, court law libraries, or individual court administrators to subscribe to online services for them.

2.3 Electronic filing and storage of case documents

Litigation begins with the filing of documents. In a civil suit the initiating document is a complaint; with a criminal prosecution, it is an indictment or some other charging document. As the subsequent judicial process unfolds the parties and presiding judge continue to exchange documents with one another - motions, responses, memoranda of law, orders, decisions, and judgments. Together these case documents along with the trial transcript and exhibits make up the official record of a case.

By the late 1990s, the potential gains from converting this paper-based process to an electronic one had become obvious. [12] Complex cases with vast numbers of documents and multiple parties provided the initial impetus. [13] Working from a system first developed for a federal district court facing a high volume of asbestos claims, the Administrative Office of the U.S. Courts had no difficulty finding additional district and bankruptcy courts willing to participate in prototype development. [14] By the end of 2000, the Administrative Office had begun installing the resulting new case management system. It included, as integrated components, electronic document storage, the capacity for Internet-based electronic filing, and remote access. Its plan, by then, was to extend this 'CM/ECF' system to all federal courts. [15] At the end of 2001, the system was operational in thirty-one. [16] The potential advantages it furnished all participants in the litigation process - litigants and their representatives, as well as judges and court staff - made it an easy sale. They included: a filing process that did not require travel to the courthouse, automated docketing, remote and simultaneous access to case files, a drastic reduction in manual filing, retrieval, and copying for court staff, files and documents that could not be mislaid, and fewer delays. [17] These benefits not only drove the federal court initiative but led numbers of state courts to begin developing electronic filing systems or to contract with commercial vendors for one. [18]

2.4 The subsequent progress of these reforms

Despite evident promise none of these technology-enabled changes has moved rapidly or evenly through the U.S. courts. Where change has occurred and how is in part a consequence of individual leadership and timing, key variables in a system with authority so widely distributed. More significantly, however, the pattern and pace of these three reforms reflect important structural and cultural features of the U.S. judicial system. Each illustrates distinct elements of that institutional reality.

3 The e-commerce analogy does not readily apply to U.S. courts

Many factors affect the ability of an organization to incorporate new technology in existing processes and, later, to redesign its workflow, methods of production, and ultimate products and services in light of radical new possibilities. Organizations operating in the commercial sector are pressed to change, some to the point of transformation, by the incentives and discipline of a competitive market. Large profits reward organizations that succeed in harnessing technology to improve internal efficiency, reach a broader market, or craft a totally new service. Their challenge is to convert customer gains into revenue. Where substantial investment is necessary to reap these rewards, capital markets offer the necessary funds. Powerful negative incentives operate, as well. Abrupt decline lies in wait for businesses that cling too long to old methods and organizational structures. Conspicuous e-commerce successes and casualties illustrate these several points.

Most government entities function in a markedly different environment and with much less flexibility. The agencies central to law are largely unexposed to market forces, and their internal divisions of function and authority are not so malleable as those in the private sector. Roles and practices tend to be deeply entrenched. Etched in statute or even more indelibly in constitutional provisions, they can be very difficult to rearrange. In the U.S., a desire for 'checks and balances' has favoured distribution of authority among governmental branches over efficiency. Distributed authority often results in major collective action problems. In addition, many gains available through digital technology take the form of public benefits not readily returned to the innovating agency through budget relief or increased revenue. Finally, even when future cost savings or efficiency gains might induce a commercial enterprise to invest in technology or process redesign, fiscal rigidities and politicians' focus on the short-term are likely to prevent a governmental body from doing so.

Beyond these general characteristics of government, U.S. history and ideology have produced court structures peculiarly unable to respond strategically, or systemically, to new technology. To begin, as the leading text on America's courts explains:

Properly speaking, there is no such thing as the American judicial system. Instead, there are multiple systems, each independent of the others. [19]

This is true most conspicuously because of the coexistence of a set of federal courts in parallel with fifty state court systems. But distribution of authority, administration, and finance of U.S. courts continues further; for within many states local units of government hold key responsibility for the judicial function.

Until quite recently no American state had a centrally administered and funded court system comparable to that of the federal courts. [20] The courts to be found in most states had haphazard and frequently overlapping jurisdiction, a consequence of their having been established at different times to meet different needs. Trial court decisions were, generally, subject to appellate review, but in other respects each court operated as an autonomous unit. Typically, while funding and management of appellate courts occurred at the state level, trial courts were tied to local governments (counties, cities, and other municipalities). [21] To quote another authority on the United States' courts:

Judicial localism served important purposes in a rural, frontier society marked by sharp regional differences and by an isolated parochialism reinforced by primitive transportation. Up to the 1960s, the courts fitted easily into the framework of local government and often acquired distinct local characteristics. … In every state, there were significant differences in the level of local expenditures for courts due to local economics and labour markets, crime levels, and views about staffing and judicial programming. [22]

The second half of the twentieth century saw movement toward 'court unification' - reform that took many forms and by any definition remains unfinished. [23]

Unification did not necessarily connote central administration and funding. A 1972 study identified only seven states 'in which all judicial costs [were] funded by the state through a single budget administered by the judicial branch.' [24] The numbers have grown since, but the traditional pattern of trial court finance - revenues flowing from multiple sources including major local government funding, fragmented financial management and infrastructure support - remains dominant. [25] Moreover, states that have moved to assume greater administrative and fiscal responsibility have quite commonly begun with judicial salaries and closely related personnel costs, leaving such items as local law libraries, [26] court clerks and other support staff, and court facilities for a later day. In 2003 the number of states that funded at least ninety percent of their trial court costs had only risen to nine. The trial courts of another sixteen were 'substantially state funded.' Those of eight more received the majority of their funding from the state but retained local funding for major areas. [27]

Another distinguishing feature of U.S. judicial structure is the doctrine of 'separation of powers.' At both federal and state levels, law making, interpreting, and applying authority are conceived of as being divided among three nominally equal branches of government. Despite numerous qualifications and complicating dependencies, U.S. courts, state and federal, operate independently of the legislative and executive branches of government. This independence is at its peak on questions of how the judicial function should be carried out - the precise zone where digital technology has such potential for immediate and dramatic reform.

Judicial independence notwithstanding, U.S. courts are without taxing authority. They are, therefore, to an important degree dependent on legislative bodies for funding. Inadequate budgets are a frequent refrain in discussions of judicial improvements of all kinds. When faced with inadequate public funding, courts have at times turned to the private sector, in effect, extracting rents from their monopoly control of a key public function. Exclusive contracts for publication of 'official' reports, for example, have a long history. Once entrenched, 'partnerships' of this kind can become major impediments to change.

4 Appellate judges as change agents - Medium-neutral citation

Although deeply embedded in professional practice, citation norms are, in theory, subject to top-down revision, even in highly decentralized court structures. The type of citation reform urged on America's courts in the 1990s necessitated but two steps. First, a court issuing decisions that others might wish to cite had to adopt the practice of designating each opinion with a unique identifier and attaching paragraph numbers or some other form of print-independent designation to opinion sections. Second, the jurisdiction's rules of practice had to be revised to require use of the new system in legal papers submitted to its courts. These actions sit comfortably within the formal authority of America's courts of last resort, federal and state.

In a minority of American states the only judicial opinions that constitute binding authority and therefore call for citation are those rendered by its highest court. The more common pattern is to have an intermediate appellate court that also issues citable opinions.

Normally, though, the procedures of such a court are regulated by the jurisdiction's top court. (The twentieth century effort to unify state court systems included at a minimum increased supreme-court rule-making authority.) [28] Most rules of appellate procedure specify how court opinions and other legal sources are to be cited in briefs, memoranda, or similar filings. In sum an American jurisdiction's citation norms can be changed by a combination of judicial action and fiat, without need for legislative or executive involvement.

Limited budgets are not a serious obstacle. Once courts have begun to prepare and release their decisions in electronic format, the addition of citation data to them should generate no additional expense. The American Bar Association pressed its recommendations on the nation's top courts as something they could quite simply do.

Nonetheless, the proposed citation reform seemed a wrenching change to many individual judges, one justified solely on the basis of diffuse and intangible public benefits. They could see no direct near term benefit for courts. Prior decisions could not be cited by the new system. Consequently, any substantial gains lay years away. Comfortable with the status quo including the dominant role of the West Publishing Company, judges tended to view other problems as far more pressing.

Effectuating the reform required altering not only judges' work process but also that of others. A switch to medium-neutral citation required secretaries, court clerks, and reporters of judicial decisions to shoulder new responsibilities and adopt new practices (attaching sequential numbers to decisions and paragraphs within them). The Association of Reporters of Judicial Decisions passed a resolution opposing medium-neutral citation. It argued that change was unnecessary for jurisdictions with official reports. Concern about staff resistance was an important factor in Louisiana's use of docket numbers as case identifiers. The Supreme Court of Washington, pressed to adopt citation reform, delegated the assignment of case and paragraph numbers to the publisher of its print reports, thereby nullifying most of the scheme's value. Resistance from court staff was reported to be a reason. In 1997, the federal Administrative Office of the Courts surveyed the views of all federal judges and court clerks on the American Bar Association citation proposal. Although the majority of the responding judges were opposed, there were some supporters in this group. [29] The responding clerks were uniformly negative. They viewed the proposal as thrusting 'an entirely new 'editorial role'' upon them at a time when they were in need of more resources and better technology to support 'core responsibilities'. [30]

In the face of serious internal resistance and seeing no direct benefits for judges and court staff, American appellate judges have not rushed to adopt medium-neutral citation. The federal courts have, so far, shown no movement; and only thirteen state courts (slightly more than a quarter) have implemented it in some form.

What factors set the adopting jurisdictions apart? First, in nearly all cases the reform had an internal champion. But there are distinguishing structural features, as well. Most adopting jurisdictions had, years before, ceased to produce state-funded law reports and eliminated the public office dedicated to their production. This meant both the absence of a potential source of internal opposition and greater awareness of the gains likely to flow from fostering greater competition for the West Publishing Company's reports. Further while the vast majority of the fifty states, like the federal courts, have two-tier appellate structures, eleven have only a single appellate court. Six of these are among the states adopting medium-neutral citation. Nine of the thirteen have state trial court systems with fewer than 100 judges, seven, with fewer than 50. [31] Six are in the bottom quintile of states ranked by population and number of lawyers; only three rank in the top half by these measures. [32] In sum, the courts embracing this change have been, on average, those of smaller states, possessing simpler judicial systems.

Two professional groups pressed for citation reform - lawyers and librarians. Both sought to break the competitive advantage that print-based citation gave the dominant publisher of law reports. States with bar groups that encompass and speak with a single voice for all lawyers in the jurisdiction have been more likely to adopt neutral citation, [33] as have jurisdictions where the high cost of legal information for courts at all levels is the concern of a single state official, in the state law library or administrative office.

At the other extreme, a handful of populous states with large numbers of lawyers and complex court systems represent sufficiently important legal information markets that the major commercial players, Thomson and LexisNexis, are willing to produce their 'official' law reports at no cost, offering tangible returns to the judiciary for this designation and its accompanying unique access to official citation data together with the final, official text of opinions. States where the judicial branch has this sort of economic stake in the status quo, most notably California and New York, have shown no inclination to change over to a citation system that would undermine that framework. [34]

5 Reform by government purchase - meeting trial court legal research needs

Unlike citation reform computer-based legal research has moved into most U.S. courthouses. Even where cases must still be cited by volume and page numbers, judges and others who assist their research now access their text, together with those citation parameters, online. An obvious difference between the two reforms is that the benefits of this one are immediately and directly experienced by the judiciary. At least equally important, these are benefits that can simply be bought.

Until recently print law libraries, generally located at the courthouse, met judges' legal research needs, although not always adequately or evenly throughout a jurisdiction. As lawyers migrated from physical law libraries to virtual ones, it became increasingly obvious that judges should be furnished equivalent access. This was not a point on which most judges or court support staff needed persuasion. Economies of scale available through bulk purchase, having all judges throughout a jurisdiction working from the same data, and coordinating training and support pointed toward dealing with this requirement on a jurisdiction-wide basis. The principal impediment was that in many states funding library support for trial judges was left to local units of government.

That, of course, was not the pattern in the federal courts. The Administrative Office of the U.S. Courts proceeded in 1998 to subscribe to Westlaw on behalf of federal judges. The same year it accepted a free subscription to Lexis.[35] Ever since both legal research services have been available to all federal judicial personnel. [36]

In those few states with fully unified court budgets and administration, the question; 'Who should contract and pay for this new service?' similarly posed no difficulty. Their structure placed securing Westlaw or Lexis services for trial judges, including the decision whether to select a single provider or give all judges a choice, in the hands of state-level judicial administrators. [37]

State-level purchase of online services has also occurred, however, in a number of states that retain significant local funding of trial courts, including their library costs. [38]

Why should state court administrators assume this cost while leaving others to be borne by local government? For any state judicial branch progressing toward greater levels of state funding this was an attractive target. It had no history of local support. County law libraries faced with rapidly rising costs were not eager to bear this new one. For the state to take it on did not threaten jobs or existing institutional turf. To state-level judicial administrators it presented the type of trial court cost that could be assumed with minimal difficulty. It was relatively small in amount, [39] not open to local manipulation, and predictable. So long as an online service could be obtained at a fixed price per password, its cost scaled with the number of judges on a court. By the late 1990s both Lexis and Westlaw were prepared to offer court subscriptions on such terms.

Even in states where decisions about online research services and their costs remain with local districts, state court administrators have been able to assist. In 2000 the Texas Office of Court Administration secured blanket contracts from both Westlaw and Lexis under which individual courts could subscribe. [40] Montana took a further step. At a time when the cost of trial court online research was still borne by Montana counties, the state law library entered into a lump sum contract with Lexis that provided sufficient passwords for the entire judiciary. The library offered them to all judges and judicial staff in the state for a pro rata share of the overall fee. This framework pushed the cost back on district courts and allowed each court to decide whether to participate. They were free to subscribe instead to Westlaw, but the rate differential induced a pronounced migration to Lexis. Then, in 2003 the state moved to assume trial court costs. The new funding formula distinguished between pre-existing commitments and fresh ones in a way that increased the incentive for districts with other arrangements to switch to the state law library contract. [41]

What is striking is that there are still states in which judicial access to online legal research is not assured - a direct consequence of leaving responsibility for this matter with each district or county and not providing state level funding. [42]

6 Inducing coordinated change in court systems with dispersed administrative authority - Moving to electronic document submission and storage

The conversion of court filing and document storage from print to electronic media presents a more complicated story. Unlike citation reform this change cannot be accomplished by appellate court action and mandate alone. Its very success depends on major work redesign at the trial court level. Unlike extending online legal research service throughout a court system, it involves far more than purchasing a standard commercial offering. Furthermore, since this reform touches on the entire litigation process, its requirements vary enormously according to the scale and character of an implementing court's caseload. A system designed to meet the needs of a single judge court handling fewer than one hundred filings a year or a municipal court processing a few thousand traffic violations, together with collection of fees, may be totally unsuited to the caseload of a large urban court, with fifty or more judges, and hundreds of thousands of filings a year. [43]

Conversion requires the persuasion and training of lawyers as well as judges. Actually, the key public actors are not judges but the court staff responsible for receiving, storing, and distributing litigation documents, and later furnishing on-demand access to the resulting court records. Consequently, the budgets, incentives, human resources, and institutional setting of these officials bear critically on the possibilities for and shape of any conversion from paper to electronic media.

Long before pervasive electronic filing became possible, court clerks had introduced a diversity of computer based systems - to support case scheduling, keep track of the contents and location of paper files, and account for the fines, fees, and costs assessed in litigation. Some had acquired scanning systems to meet the challenge of document storage. As a consequence of different choices made at different times by districts with quite different needs, any coordinated move to electronic filing and document storage by a jurisdiction was near certain to have implications for a wide array of legacy data systems. Close relationships with system vendors, some of whom offered electronic filing as an add-on to existing administrative software, easily led court personnel to place a higher value on integration with what they already had in place than compatibility with systems chosen by others.

On this front, several factors placed the federal courts at a distinct advantage. Their caseloads are far less diverse than those handled by state systems. Unlike state courts they had long received centralized funding and backup administrative support. Their clerks and other staff are employees who serve only the courts. They are also civil service employees rather than elected officials or political appointees. Many of the existing computer information systems in the trial-level district and bankruptcy courts were designed and supported by the Administrative Office of the U.S. Courts. These factors together with effective and timely leadership by the Administrative Office, ample funding to invest in new systems, [44] and a clear system-wide plan made it possible for the federal courts to achieve an electronic filing, document storage, and records access system no state has yet come close to matching.

Launched on a court-by-court basis, the federal Case Management/Electronic Case Filing (CM/ECF) system is now in place across all district and bankruptcy courts. The nature of bankruptcy litigation has produced a system capable of dealing with voluminous filings and a multitude of parties. By anticipating rather than lagging the needs of individual courts, the federal Administrative Office was able to achieve this result through leadership, service, and support rather than mandate. [45]

This success was not inevitable nor is it yet unqualified. At the time work began on the software that became the CM/ECF system, several federal trial courts had already established electronic document storage systems on their own. [46] The range of court requirements and existing practices forced the Administrative Office to adopt a highly configurable design. This increased the difficulty of installation and training and continues to challenge inter-court compatibility. Finally, tolerance of judicial autonomy has allowed individual judges to insist that in matters over which they preside, all electronic filings must be accompanied by the parties' delivery of tangible 'courtesy' copies to their chambers. [47]

In most states, court autonomy has presented a far more serious obstacle. Explaining the slow progress of electronic filing in one state, two commentators wrote:

The state courts are typically structured so that each local court has its own case management system, unique rules, and methodology, making it difficult for practitioners to operate consistently from court to court in the same state. A balkanized environment can make it difficult to establish a uniform e-filing system - not only because of local rules and systems, but because funding for courts is typically on a local basis as well. [48]

Incompatible legacy software is a major problem. A planning document prepared by California's Administrative Office of the Courts counted more than 200 case management systems in the state's fifty eight counties, all configured differently. It reported further that many California courts lacked the financial and technologic resources to build their own electronic filing systems and that the state administrative office hadn't the capacity to develop one for state-wide use. [49]

Much of the day-to-day support of the litigation process is carried out by officials with the title of clerk and their employees. They receive case filings, maintain case records, and distribute court rulings, but often carry other public responsibilities as well. While one might assume that in performing court-related functions clerks are supervised by and answerable to judges, the reality in many states is far more complex. The very first legal issue addressed in a 2005 report of a Florida Committee on Privacy and Court Records was whether clerks were subject to the supervision and rule-making authority of the state supreme court. Although the committee concluded that they were, the issue demanded serious attention. [50]

In well over half the states, clerks are elected. [51] It is not uncommon for the office to be set out in a state's constitution. [52] Even more than trial court judges, clerks have, historically, been closely connected to local politics and government. Possessing staff of their own and an independent political base, clerks have been known to play a key role in judicial election campaigns. [53] Even at the state level they can be an effective political force. In Oklahoma, district court clerks secured legislative action blocking an effort to establish a single state wide case management system. [54]

Because of such institutional factors, state court implementation of electronic filing remains spotty and, in general, lags far behind the level achieved in the federal judiciary. One might expect this with states where local governments retain substantial administrative and funding responsibility for trial courts. But even in states at the other end of the spectrum, with state moneys furnishing nearly all trial court support, electronic filing has progressed slowly because of the complexity and cost of the conversion process. Of the nine states that fund 90-100% of trial court costs, only one (Connecticut) has a rule authorizing electronic filing. [55] It is accompanied by an electronic filing system available for use in case types accounting for roughly 85% of the civil matters filed in that state's trial courts. [56] Massachusetts's trial courts are in the fifth year of a state project that aims to install a new, integrated case management system, but electronic filing remains a more distant goal. [57]

In several other states with less complete but nonetheless substantially centralized trial court funding and administration, electronic filing is a work in progress. New Jersey's JEFIS program offers an electronic filing option to civil litigants in matters with between $3,000 and $15,000 at stake. [58] New York has a system that is currently operational for all case types in two counties, for commercial, tort, and tax cases in sixteen more.[59] North Carolina's specialized trial court unit handling complex commercial and corporate litigation offers and encourages the use of electronic filing. [60] After testing electronic filing with appeals,[61] the Alabama Supreme Court authorized a pilot project for the state's trial courts in 2006. [62]

There is one important sense in which the high courts of all states have control over electronic filing implementation in their jurisdictions. For it to take place they must amend existing procedural rules framed in terms of paper documents. As of 2007, roughly half the states had rules opening this door. [63] They include those discussed above, but also states in which the new rules merely set the terms and conditions on which trial courts can, on their own and employing such systems as they choose, allow electronic filing. The initiative, system selection, and other crucial details may be left to each individual court. Arizona is a state in which a substantial portion of trial court funding comes from local governments. [64] Its electronic filing rule exemplifies this approach. It reads: 'The presiding judge of the superior court in each county may permit by appropriate court rule the electronic filing of documents in the superior court and justice courts in each county.' [65] Pursuant to this authority the Maricopa County Superior Court (Phoenix) has implemented electronic filing. [66] Electronic filing is not generally available in Arizona nor are other courts that might take advantage of the rule required to adopt compatible systems.

A few states have used rules authorizing electronic filing and court records to guide adopting courts toward a common interface or data standard. This approach doesn't bring electronic filing to impoverished or reluctant parts of the jurisdiction but it does lay the foundation for what may, eventually, become a state wide system. At roughly the same time, both California and Texas headed down this path.

In 1999 the California Administrative Office of the Courts began work on technical standards for electronic filing. [67] Building a state wide system at that point seemed impossible. By 2002, the project had achieved both a conceptual model and specifications for an ultimate system toward which commercial service providers and trial courts could aim. [68] Progress since then has been slow and intermittent. [69]

Confronted with individual court initiatives and the likelihood of incompatibility, the Texas Judicial Branch adopted a model that sets standards for both commercial electronic filing service providers, who provide the interface, training, and support required by filers, and court case and document management systems. [70] This pair of standards is embodied in state-sponsored infrastructure known as 'Texas-Online'. The state's Judicial Committee on Information Technology provides model rules for both county and district courts that implement this electronic filing arrangement. [71] (Local electronic filing rules must be approved by the Texas Supreme Court.) [72] Court systems must be capable of receiving filings passing through Texas-Online. Litigants filing electronically may employ any one of several commercial service providers whose systems have been certified for compatibility with the Texas-Online infrastructure. [73] Filers must have accounts with and pay 'convenience fees' to Texas-Online and also their chosen service provider. As of July 2008, only 35 of the 254 Texas counties were participating, but these included its major population centers. [74]

Colorado has taken a totally different route to comprehensive and uniform state wide electronic filing. The only state, to date, to have reached this goal, it did so by outsourcing. In January 1999, the Colorado Judicial Department contracted for commercial creation and operation of a complete system. Its initial vendor was acquired by LexisNexis in 2001. Colorado's present agreement with LexisNexis CourtLink places electronic filing and the resulting digital case files totally in the control of the contractor. While the state retains 'ownership' of all Colorado documents held in the LexisNexis 'File & Serve' system [75] and has, upon contract termination, the right to download them to its own servers, [76] so long as the contract continues LexisNexis has complete responsibility for the electronic filing system, document storage, and data access. [77] A huge attraction of the arrangement to the state judiciary has been that it carries no direct budgetary cost. The state pays nothing to LexisNexis. Actually, monies flow the other direction. LexisNexis collects and remits the state's standard filing fees for all documents filed electronically. [78] In addition it pays the state a modest amount per transaction. [79]A recent contract renewal brought a lump sum payment of $160,000 to the Colorado court system. [80] Use of LexisNexis 'File & Serve' by judges and judicial staff, other state personnel, and court appointed and funded representatives, incurs no charge.[ 81] All training and support costs are borne by LexisNexis. [82] The entire system is financed by additional electronic filing fees LexisNexis collects from those who use it - all litigants other than the state - and charges for ancillary services. [83] Under the Colorado contract, the company's fees for electronic filing and service are subject to state approval, but its charges for add-on features and for public access to documents in the LexisNexis system are not. [84]

The outsourcing of public functions, including those traditionally managed by courts, is neither new in the U.S. nor, it seems, politically controversial, at least so long as the work remains within the country. [85] This is especially true of functions that require new technology. Outsourcing can seem particularly attractive in this context. It offers a way for courts to acquire technology and related expertise without heavy upfront investment. It appears to reduce the stakes by reducing the difficulty of adjusting a course of action in response to future needs and developments. Most importantly, it allows courts to focus their limited resources on core functions. [86] But, by leaving court data in the custody of a private firm, outsourcing the full process of electronic filing and document management opens a completely new set of issues. Furthermore, by financing the scheme through a contractor's charges the state judiciary is, at minimum, assuming major regulatory responsibility.

While the Texas model also includes commercial service providers, it limits their role to providing interface, training, and support to filers. They are permitted to charge for the service, but those charges are constrained by competition. Competition also protects the state against vendor lock-in, a serious risk with the Colorado model. In addition, reliance on a commercially maintained electronic filing and document storage system seems likely to frustrate full integration with court-based case management software, functionality that the federal CM/ECF system has achieved and toward which numerous other states are striving. The courts of at least one other state (Delaware) appear to be headed down the outsourcing path. [87] The approach has also been embraced by individual courts in jurisdictions that have not addressed electronic filing on a state wide basis.

7 Timing, scale, and the pursuit of standards

7.1 Timing

Following an initial cluster of adoptions, the movement of U.S. jurisdictions toward medium-neutral citation seems to have lost momentum. The professional organizations that advocated for this reform during the 1990s shifted their attention to other issues. Electronic publishers have proliferated and prospered despite the cost and inconvenience of accommodating print citation norms. Might it be that the moment for this reform has passed? Several factors suggest otherwise. First, working models of medium-neutral citation in over a quarter of the states should put concerns about the cost or difficulty of implementation to rest. By contrast, they also highlight the functional difficulties caused by the continued need in other jurisdictions for publishers or researchers to secure volume and page numbers, data derived from books that are themselves rarely used. Most U.S. appellate courts now offer a decade or more of past decisions at a public Web site. As these collections grow ever deeper so may the embarrassment to courts of having to refer users to printed law reports for the 'official version' and citation information. Finally, the availability in electronic format of vast numbers of opinions that cannot be cited to print because they will never be published in that form should generate increasing pressure for court-attached citation information.

The movement toward comprehensive judicial access to online legal information, already far ahead of the implementation of medium-neutral citation, has not slowed. On this front, as well, the electronic dissemination of decisions not published in print is a propelling factor. In those many jurisdictions now allowing citation of such decisions, access to them by all judges should appear a necessity. That access can be assured only by state level measures.

Due to path dependence, time promises to play a more complex role in the shift from paper to electronic filing. In May 2008, the chief justice of the Illinois Supreme Court, speaking on behalf of the Court, announced a plan to link all that state's trial courts electronically. According to his statement, the system would, once completed, enable electronic filing throughout all 23 judicial circuits and 102 counties in Illinois. [88] Five years earlier the Illinois Supreme Court had authorized electronic filing on an experimental basis subject to state administrative office supervision. [89] Nonetheless, the Court's 2008 announcement was greeted with scepticism. Wrote the Illinois Bar Journal: '[E]xactly what to expect, or when, or how, remains unclear…. [C]osts and funding sources for the initiative are yet uncertain.' [90] The announcement itself acknowledged those issues and also conceded that one conspicuous path was no longer open. While the Administrative Office of the U.S. Courts had been able a decade before to attach its electronic filing initiative to the replacement of obsolete case management systems, Illinois could not. By 2008 its trial courts had in place a diversity of functioning case management systems which the envisioned state-wide system could not displace. [91] Illinois is a state where localities still furnish a majority of trial court funding, clerks hold significant political power, and counties range in population from over 5 million to under 5 thousand. [92] Realizing the Supreme Court's electronic filing vision will be a greater challenge now than if the effort had begun a decade ago.

In states like Illinois where local courts are free to make independent decisions about case management software, delay in establishing state-wide electronic filing increases the difficulty of the endeavor. States that have gone further and allowed individual courts to establish or contract for electronic filing systems on their own, without taking steps to assure interoperability, may find it nearly impossible to achieve a uniform system covering the entire jurisdiction.

7.2 Scale

Electronic filing's promise of significant public gains and its attractiveness as a source of revenue to commercial providers depend on scale. The numbers work for trial courts like that in KingCounty (Seattle), Washington (population 1.8 million). Since converting to electronic court records, KingCounty has reduced court administrative staff by 18.5 positions. (A further trimming of 7.5 is projected.) Reduced expenditures for space and supplies generate additional annual savings of approximately $250,000. [93] LexisNexis has made the numbers work for Fulton County, Georgia (population 1 million) and Colorado (population 4.8 million). [94] Courts serving much smaller populations with very little litigation, if considered individually, yield quite different results. In states that leave responsibility for trial court administrative support with local units of government, electronic filing will be a long time coming to sparsely populated rural areas.

Texas and Washington are two such states. Both have successful models of electronic filing in major population centres. Texas has set standards that apply throughout the state. But working models and standards will not bring electronic filing to Loving County, Texas (population 60) or Garfield County, Washington (population 2,200). In such settings, the potential gains from electronic filing and remote access to the resulting court records for judges, individual litigants, and their representatives should be large, but because of the small numbers total savings to the public purse are not likely to place this high on the list of local funding priorities. Geographic inequity is the inevitable result. By cumulating benefits as well as costs across courts and local units of government, jurisdictions that plan and fund conversion to electronic filing at the state-level can avoid this consequence of inadequate scale.

7.3 Standards

States that leave all critical decisions about electronic filing implementation to individual courts virtually guarantee adoption of incompatible systems. That creates a future problem for any effort to unify state courts and an immediate one for lawyers who practice law beyond a single locality. An early California electronic filing report noted that a large percentage of that state's lawyers practiced in at least four counties. The report concluded it was important to have a single system that could be used by lawyers filing in any kind of case before any court in the state. [95]

While the pattern of trial court funding in Texas may make state-wide electronic filing a distant prospect, the state has, at least, established a framework that assures interoperability. Working through the state-certified electronic service provider of their choice, lawyers need to master and use only a single interface as they represent clients before state trial courts in Austin, Dallas, Houston, or San Antonio. The requirements set for qualifying court case management systems lay a foundation for state-level indices, data extraction, and analysis. Both results have been achieved through use of the state supreme court's rule-making authority to establish state-wide standards.

Looking beyond the courts of individual states to those of the federal courts and neighbouring jurisdictions, the prospects of wider interoperability (one system allowing filing with most U.S. courts through the service provider of one's choice) seem dim. That is not for want of reasonable standards but is due instead to the absence of any agency with sufficient authority or influence to secure adherence to them. Timing, too, has been a problem. In 2003 a committee of state court judges, administrators, and technical personnel named the 'National Consortium for State Court Automation Standards' produced an electronic filing standard. [96] A more detailed set of technical standards prepared under the auspices of the 'LegalXML' project has been a work in progress for at least seven years. [97] While both have proven influential with a number of states, neither was available in time to guide the designers of the federal courts' CM/ECF system.

Standards have also proven both attractive and elusive in the realms of citation and legal research. Operating within so complex and decentralized a legal system, lawyers and judges have long been drawn toward products, procedures, or norms that moderate the difficulty of researching the law of so many jurisdictions and citing authority from so many courts.

The original success and subsequent staying power of the commercially produced National Reporter System, while partly a consequence of its comprehensive coverage, was also due to its providing the case law of all state and federal courts in a consistent format, indexed according to a single topical matrix, and citable according to a standard formula. The wide influence of a citation manual published by a small group of law journals, nominally for their own use, reflects the same strong desire for a national citation standard. [98] A number of state courts have asserted their own requirements for citation of cases, but most either complement or largely incorporate these unofficial national norms. [99]

The efforts of the American Association of Law Libraries (AALL) and American Bar Association (ABA) on citation reform were not limited to arguing that courts should adopt some form of medium-neutral citation. The name of the ABA resolution and the subsequent AALL guide make it clear that both organizations sought a 'universal' system - a consistent approach to citation reform across U.S. jurisdictions. However, since this 'universal' system could be achieved only by incremental action, jurisdiction-by-jurisdiction, it was inevitable that diverging implementations would result even among those accepting the premise of the reform. Although a national medium-neutral citation standard would be enormously useful, its emergence from a prolonged sequence of independent acts by state high courts and the federal judiciary is most unlikely. [100]

Any publisher can, of course, attempt to establish a new national citation system. In fact, both Westlaw and Lexis have. Being proprietary, however, their electronic citations like the volume and page numbers of the printed National Reporter System, communicate effectively only with those using the same service. United States v. Siegel was decided on August 12, 2008 by the United States Court of Appeals for the Fourth Circuit. Lexis designated the opinion '2008 U.S. App. LEXIS 17151.' Westlaw initially provided a similar citation in the format '2008 WL ____' but subsequently replaced that with decision's volume and page numbers in the company's Federal Reporter, '536 F.3d 306.' (Those Court of Appeals decisions not selected for inclusion in the Federal Reporter retain their Westlaw citations.) Unfortunately, a Lexis citation will not retrieve a case on Westlaw (or Loislaw or Casemaker or any of the other commercial online services), and Westlaw citations work only on Westlaw. The case or court applied medium-neutral citations is that they work across media and commercial systems. The continued attraction of the National Reporter Service citations for cases published in its pages and of Westlaw and Lexis citations for 'unpublished' cases loaded in their services is uniformity across courts.

8 Conclusion

To anyone working within a less decentralized, more coherently administered, judicial system, the picture presented here must appear chaotic or worse. Individually, U.S. courts have embraced technology. They have acquired computers and word processing software for judges. Many have turned to the Web as a cost-effective means of communicating information about location, schedules, and procedures. Court rules and widely used forms are posted at court sites. And most judges in most U.S. jurisdictions have access to a sophisticated online legal research service. But reforms that depend on coordinated action or substantial investment are progressing more slowly than they might in a more unified system. Because of the uneven pace and dispersed initiative some outcomes seem not merely distant but unlikely.

The corresponding good news is that within the experimental space created by America's fifty-state federal structure, vision, leadership, and institutional capacity have aligned in a number of jurisdictions to furnish at least a foretaste of what judicial processes reconfigured for a digital age can look like and to provide solid models on which other state systems and the federal courts can draw. These developments warrant greater attention. Some deserve 'best practices' designation. Others provide vivid examples of what not to do. Achieving more efficient, more effective, and less costly courts, even while expanding access are goals digital technology has placed within reach. They are, however, attended by challenges that call for serious scholarly inquiry, sustained public leadership, and, in many cases, significant adjustment of institutional design.

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