Beyond Efficiency: The Transformation of Courts by Technology

Abstract

This paper advances the notion that procedure should be restored to the high road from which it has been diverted in the last decades. In the 1960s and 70s, the traditional approach, which subordinated procedure as ancillary to substance, was replaced by a much richer understanding of procedure's significance. But this trend was reversed largely as a result of the drive for efficiency that has dominated the courts and their alternatives. One of the side effects of this development has been the channeling of technology's impact on dispute resolution procedure to what I term the "efficiency paradigm."

While the technological revolution of the recent decades has had a far reaching impact on substantive legal arrangements and doctrines, it has had only a limited effect on procedure, where it has typically been neglected or narrowly viewed as efficiency-enhancing. In this fashion, procedure has been pushed back to its subsidiary role with regards to substance. This paper advances a more comprehensive view, which underscores the potential of new technologies to advance a wide range of procedural values (including efficiency) under a "multidimensional learning paradigm."

These themes are explored in the arena of digital technology in the courtroom and, specifically, by focusing on a particular case study - that of the Israeli court computerization, which is simultaneously caught up in the efficiency paradigm and creates the basis for a shift to the alternative approach that is promoted in this article.

Keywords: Dispute Resolution NGCS