Much of my scholarship addresses cyberlaw. In order to keep up in this field, I have to follow the developments in two fields: law (obviously) and computer science. For this second area, it helps that I am trained in computer science and spent several decades programming for a variety of businesses. As part of the process of keeping up with computer technology, I maintain my membership with the Association for Computing Machinery, the primary academic society for computer science.
In this month’s Communications of the ACM, there was an interesting commentary entitled, “Technology Confounds the Courts.” It was written by Keith Kirkpatrick, apparently a non-lawyer. Comm. of the ACM, May, 2014, at 27. In the article, Mr. Kirkpatrick attempts to identify the reasons why our courts often do a poor job of understanding the computer technology that is involved in many modern cases. I found this commentary interesting as it examined a commonly identified problem within cyberlaw from the perspective of a technologist. Two of his points — the age of judges and the narrowness of decision-making — miss the mark. His underlying point — that judges need to understand technology — is sound although achieving the goal may be more difficult than he realizes.
Several times the author raises the average age of judges as a cause of their technological ignorance. See id. at 27 & 28. He also raises a somewhat related issue: the fact that our federal judges are appointed for life. See id. at 29. On these issues being a significant source of technological ignorance in the judiciary, I assert that Mr. Kirkpatrick is just plain wrong. A lot of us grey hairs have comprehensive knowledge of the current technology and how it is used. I could choose many examples, but I will highlight one of the professors I have always held in high regard, Frederick Brooks of the UNC Computer Science Department. According to his biography, Dr. Brooks is 83 years old. He has been a very important leader in the computer science field since the 1950s when helped develop the most famous line of mainframe computers ever, the IBM 360 series. He founded the computer science department at UNC where he is actively involved in researching virtual reality, hardly a backwater area of computer science. Similarly, most judges of my experience are not monk-like. They read the paper (probably online) and even Reddit. They serf the Web. Their exposure to technology is similar to others with busy lives. Mr. Kirkpatrick: age is irrelevant.
The author also complains about the narrowness of many technological-related decisions. See id. at 28–29. Here, he needs to better understand our legal system. Because we live in a common law country, a fundamental aspect of the system is that the courts render as narrow of a decision as the facts allow. Rather than being a fault, seeking the narrowest grounds for decision has kept the common law functioning for centuries.
The Hit (Well, Mostly)
Judicial ignorance of technology may not be complete, but its existence is impossible to deny. See, e.g., St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773 (S.D. Tex. 1999). The harder question is deciding how this can be changed. Mr. Kirkpatrick advocates for a more specialized court using both the EU’s Court of Justice and the Japanese Intellectual Property High Court as examples. Kirkpatrick, Technology Confounds at 29. For the EU court, “the more complex selection and appointment process involving a disparate group of EU members ... are more likely [to result in judges who are] current on a greater variety of technologies.” Id. For the Japanese court, he suggests that its use of full-time technical advisors will result in more competence. See id. Of course, he did not need to go overseas for examples as the U.S. Federal Circuit with its patent expertise would also seem to qualify (although far from all of the judges appointed to the Circuit have technological backgrounds).
Personally, I’m not sure how well a specialized, technology court would work. In the U.S., at least, we would still run into the “one supreme Court” language in Article III of the Constitution. Even if a technology court decided a case, it would be subject to an appeal the Supreme Court; indeed, this is the pattern with the Federal Circuit and the Supreme Court. In my area of cyberlaw, for example, the Federal Circuit often has a better understanding of the technology even though the Circuit might forget the broader purposes of the patent act. Ultimately, though, it is the Supreme Court’s often mistaken understanding of the technology that rules the day.
More importantly, it is not clear that a technology court is practical. To start with, which technology? As Mr. Kirkpatrick’s article correctly points out, our court system has done a horrible job articulating a functional system of laws for computer software. Part of the reason for this is that even our more techno-centric court lacks any members with the relevant computer science training. The Federal Circuit has numerous judges trained in chemistry and other traditional scientific areas — as well as some trained in history and other liberal arts — but it does not have computer scientists. This is problematic as it has become impractical to be the technological Jack-of-all-trades that it was possible to be through the late 1800s or early 1900s.
What that leaves is a suggestion in the article that our judges no longer pretend that they can understand all forms of technology without assistance. So, if a court recognizes that it needs help, where does it turn? One source that Mr. Kirkpatrick does not discuss is the lawyers who are representing the parties. There are numerous examples of case where the parties prepared a joint technology statement to help the court understand the issues. Of course, this only works where the parties agree about the technology — something that is less true in intellectual property litigation where defining the technology “your way” is often equivalent to winning. Further, it assumes that the legal team is sophisticated enough about the technology to be able to competently articulate it.
The other possibility, of course, as Mr. Kirkpatrick suggests, is to encourage the judges to recognize their technological shortcomings and to appoint masters under Rule 53 to help the court determine the technologically based facts. Unfortunately, the limited nature of the rule and the requirements of the Constitution may interfere. Rule 53 only allows masters if both parties consent, Fed. R. Civ. P. 53(a)(1)(A), or if the case is a non-jury case and is “exceptional,” id. 53(a)(1)(B). The Constitution imposes two limitations on the use of masters: each parties right to have the case ultimately decided by a Judge appointed under Article III and to demand a jury trial in many cases.
Even with the constitutional limitations, however, it would seem to be time to revisit the use of masters in technology cases within the federal system. For non-jury cases, the rule could be easily amended to make it clear that complicated technology underlying a case is an “exceptional condition” that the rule requires. Id. Obviously, the rule has to recognize the jury trial right provided by the Seventh Amendment. It would seem that a master’s report on the technology could be submitted to the jury to assist it in its decision-making in the same way that the report would be submitted to the judge in a non-jury matter. In both cases, the Article III or Amendment Seven decision-maker would be preserved while providing them with technological expertise from a neutral source.