“The Life of the Law Has Not Been Logic; It Has Been Experience.”
Ramon Abadin
This famous line by Oliver Wendell Holmes, Jr., has special application to one of the many dilemmas confronted by the modern thinker on legal issues. Among the innovations coming to the civil justice system are new models of alternative dispute resolution, which remove the human character of civil dispute resolution altogether, in favor of computerized results based on programmatic input.
Visit http://www.modria.com to see an example of a company forging a new path in resolving disputes between customers and companies such as Ebay and Paypal. Modria boasts of having resolved 400 million cases using online tools and four modules for diagnosis, negotiation, mediation, and arbitration.
When one considers the barriers to access to the civil justice system for resolution of smaller, less complex disputes, it is easy to see the appeal of a system that is affordable, speedy, and predictable. extrapolation, wouldn’t it make sense to turn to technology to resolve many disputes that are currently resolved by judges in our county and circuit court system? The price of admission for resolution of family law disputes, landlord tenant disputes, and the like is frequently prohibitive, even when the standard to be applied is statutory and is not one that affords the assigned judge a great deal of discretion.
The answer is not so simple. There are compelling arguments in favor of the human quality of judging. Just consider the federal sentencing guidelines, which sought to provide certainty and fairness and which instead have attracted a firestorm of criticism for their harsh results and reductionist approach.
As Justice Cardozo noted in The Nature of the Judicial Process, virtually every legal precept under which we operate today is in contradiction of a prior rule. Without judges, how would the system be moved to reflect evolving social mores? Common law is not static and judges willing to look to precedent with new eyes have taken some of the most profound strides forward in our society. If family court were to relegate decisions to impersonal means, how would the seismic sociological changes of the last decade have been implemented?
Aside from the dramatic changes in society that common law mirrors, judging involves issues that defy reduction to an algorithm. Comity. Statutory interpretation. What if it is true that, as Professor Llewellyn observed, for every canon of construction, there is an opposite canon?
Judges bring imagination, good sense, courage, and compassion to their cases, so that the end result can be, and hopefully is shaped by an arc toward justice in the particular circumstances.
So, how to balance the capacity for technology to improve access to our justice system with the ineffable value of justice dispensed with human grace and mercy? To borrow from the model of Hegel’s dialectic: If the thesis of our judicial system is that the humanity of judges is essential to justice, and the antithesis is that computerized modules can offer consistent and accurate dispute resolution, to what do we turn for a synthesis?
The resolution must be a combination. Decisions will have to be made as to what disputes can be satisfactorily resolved impersonally, and the extent to which expediency justifies the loss of the personal. No doubt there is a broad spectrum of disputes for which technology is entirely appropriate. Equally certain is the fact that our common law system is more reliant on experience than logic, and this recognition must be paramount as we define the role which technology is to play in the civil justice system.
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