Online Courts and The Future of Justice Susskind R e 3c7rrhu5xm
Online Courts and The Future of Justice Susskind R e 3c7rrhu5xm
329
DOI 10.5817/MUJLT2020-2-9
Susskind, R. E. (2019) Online Courts and the Future of Justice. Oxford: Oxford
University Press, 368 p.
1. INTRODUCTION
“More people in the world now have access to the internet than access
to justice. According to OECD, only 46 per cent of human beings live under
the protection of the law.“1, 2
This statement could be seen as the main reason, why the treatise such
as Online Courts and the Future of Justice is more than actual. Richard E.
Susskind dedicated almost four decades to the work and research
on the utilization of technology within the courts, which is also proven
by his plentiful publication activity.3
In the introduction of the book, the author is pointing out that the topic
of online courts is stirring some emotions especially in legal circles because
of its conservative environment. Since it is thorny issue, it is crucial to keep
*
[email protected], master student of the Faculty of Law, Masaryk University, The Czech
Republic.
**
[email protected], legal specialist and post doc at the Institute of Law and Technology,
Faculty of Law, Masaryk University, lawyer and research specialist at Faculty
of Informatics, Masaryk University, The Czech Republic.
1
According to Statista.com, 59 % of the global population has access to the Internet. Clement,
J. (2020) Worldwide digital population as of July 2020. [online] Available from: https://www.
statista.com/statistics/617136/digital-population-worldwide/ [Accessed 1 August 2020].
2
Susskind, R. (2019) Online Courts and the Future of Justice. Oxford: Oxford University Press,
p. 27.
3
For example, Susskind, R. (1996) The Future of Law. Oxford: Oxford University Press;
Susskind, R. (2000) Transforming the Law. Oxford: Oxford University Press; Susskind, R.
(2017) Tomorrow's Lawyers. Second Edition. Oxford: Oxford University Press.
330 Masaryk University Journal of Law and Technology [Vol. 14:2
an open mind about approach to the topic.4 Susskind’s book is in fact not
about replacing human judges by the computer ones but about exploring
the potential of the online courts – online decision-making process,5
extension of the courts and digital transformation of the court system
to better serve the public. The improvement of the access to the courts
should be seen as the main philosophy of the online courts. According
to Susskind’s idea of online courts, he recommends firstly to focus
on the minor conflicts (especially low-value civil disputes). Subsequently
the knowledge would be transferred to more challenging tasks (criminal
law disputes or “hard cases”6).
The book is divided into four parts. The first part is called Court and
Justice, and it explains what is the purpose and value of court systems,
the access to justice, if it is time to make a change and how to use
technology to reach these goals. The second part of the book is called Is
Court Service or a Place? and it is developing the central vision of the book –
the idea of the architecture of online courts. The third part is focusing
on obstacles when building online courts and it is called The Case Against.
The most innovative part is the last one which is called The Future. In this
review, we are respecting the order of the book and our comments and
observations follow the same structure.
4
Susskind, R. (2019) Online Courts and the Future of Justice. Oxford: Oxford University Press,
p. 3.
5
According to Susskind’s opinion, understanding online judging involves determination
of cases by human judges but not in physical courtrooms. He is also mostly trying
to exclude a videoconferencing, or any other synchronous communication and he is
favouring written submissions. Moreover, online judging shall be (by his opinion)
conducted via online platform where all the evidences and arguments will be submitted
and subsequently the decision will be delivered. Op. cit., pp. 116–117.
6
To see more on that: Dworkin, R. (1975) Hard Cases. Harvard Law Review, 88 (6), p. 1060
et seq.
7
Susskind, R. (2019) Online Courts and the Future of Justice. Oxford: Oxford University Press,
pp. 19–25.
8
Op. cit., pp. 27–29.
2020] A. Blechová, P. Loutocký: Online Courts and the Future of Justice ... 331
9
Op. cit., p. 34.
10
Op. cit., p. 60.
11
Završnik, A. (2019) Algorithmic justice: Algorithms and big data in criminal justice setting.
European Journal of Criminology, 20 (1). [online] Available from: https://journals.sagepub.com
/doi/pdf/10.1177/1477370819876762 [Accessed 1 August 2020].
12
To see more on these issues e.g.: Scherer, M. (2019) Artificial Intelligence and Legal
Decision-Making: The Wide Open? Journal of International Arbitration, 36 (5), p. 554 et seq.;
Surden, H. (2018) Machine Learning and Law. Washington Law Review, 89 (1), p. 105;
or historically D’Amato, A. (1977) Can/Should Computers Replace Judges? Georgia Law
Review, 11, p. 1300 et seq.
13
Završnik, A. (2019) Algorithmic justice: Algorithms and big data in criminal justice setting.
European Journal of Criminology, 20 (1), p. 11. [online] Available from: https://journals.sage
pub.com/doi/pdf/10.1177/1477370819876762 [Accessed 1 August 2020].
332 Masaryk University Journal of Law and Technology [Vol. 14:2
14
Caliskan, A., Bryson, J. J., Narayanan, A. (2017) Semantics derived automatically from
language corpora contain human-like biases. Science, 356 (6334), p. 185. [online] Available
from: https://science.sciencemag.org/content/sci/356/6334/183.full.pdf [Accessed 1 August
2020].
15
Završnik, A. (2019) Algorithmic justice: Algorithms and big data in criminal justice setting.
European Journal of Criminology, 20 (1), p. 11. [online] Available from: https://journals.sage
pub.com/doi/pdf/10.1177/1477370819876762 [Accessed 1 August 2020].
16
Susskind, R. (2019) Online Courts and the Future of Justice. Oxford: Oxford University Press,
p. 44.
2020] A. Blechová, P. Loutocký: Online Courts and the Future of Justice ... 333
increase,17 also because such submissions and using online courts is only
a possibility not obligation. 18 Nevertheless, we think that this idea could be
met only if the laypeople would be able to write and manage their
submissions effectively. But that could be a difficult task. The main issues
are the use of accurate language and “evaluating” or “presenting”
the evidence. Laypeople are not trained to identify which information could
be relevant and which is not. The solution to that problem could be some
assistance offered by the online court (guide, documentation or personal
assistance).
17
Op. cit., p. 70.
18
This has been already proven in out-of-court online dispute resolution. To see more on that:
Loutocký, P. (2016) Online Dispute Resolution to Resolve Consumer Disputes from
the perspective of European Union Law: Is the Potential of ODR Fully Used? Masaryk
University Journal of Law and Technology, 10 (1), pp. 113–127.
19
Susskind, R. (2019) Online Courts and the Future of Justice. Oxford: Oxford University Press,
pp. 113–119.
20
Op. cit., pp. 113–116.
21
Op. cit., pp. 117–118.
334 Masaryk University Journal of Law and Technology [Vol. 14:2
22
Op. cit., p. 126.
23
For example, Resolver. [online] Available from: https://www.resolver.co.uk
[Accessed 1 August 2020].
24
Susskind, R. (2019) Online Courts and the Future of Justice. Oxford: Oxford University Press,
pp. 127–128.
25
Op. cit., p. 137.
26
For example Civil Resolution Tribunal. [online] Available from: https://civilresolutionbc.ca/
[Accessed 1 August 2020].
27
Susskind, R. (2019) Online Courts and the Future of Justice. Oxford: Oxford University Press,
p. 141.
28
The author of the book is opposing this argument in chapter 22. Op. cit. pp. 224–226.
29
Rule, C. (2012) Quantifying the Economic Benefits of Effective Redress: Large E-Commerce
Data Sets and the Cost-Benefit Case for Investing In Dispute Resolution. University
of Arkansas at Little Rock Law Review, 24 (4), p. 772 et seq.
2020] A. Blechová, P. Loutocký: Online Courts and the Future of Justice ... 335
and Tier 2 can eliminate (even by involving the negotiation phase between
the parties) many simple cases and the court (and especially the judges
themselves) is only dealing with fraction of the initiated cases.30
Last tier is described as the online litigation, which involves a human
judge. Nevertheless, the dispute should be still completely led online and
based on written submissions.31
There are concerns that judging online is not possible. This argument is
supported by the cases like The Queen v. Dudley and Stephens.32 “Hard cases”
containing moral dilemmas or difficult ethical questions require special
attention. Online courts are according to Susskind primarily focused
on quick settlement of “easy” cases. This approach will let human judges
to focus just on hard cases. The question is if the system will be able
to distinguish in Tier 1 between the “hard” and “easy” cases.33
In the last chapter of this part, Susskind introduces the successful projects
similar to online courts. He is mentioning examples like systems in China,
Australia, Canada or England and Wales.34 On the other hand, the author is
surprisingly ignoring situation within the European Union, for example
approaches in Denmark or Estonia.35
30
Almost 85 % of the cases were resolved in Tier 1 and Tier 2 by Civil Resolution Tribunal.
Rozenberg, J. The Civil Resolution Tribunal. The Online Court: will IT work? The Legal
Education Foundation. [online] Available from: https://long-reads.thelegaleducation
foundation.org/ [Accessed 1 August 2020].
31
For the first generation of online courts, there would be no involvement of “AI” judges
or predictive systems in the Tier 3. However, the Tier 3 has potential space for it in the next
generations of online courts.
32
Dudley and Stephenson is an English criminal law case, which is challenging the justification
of cannibalism. The main idea of the case is if it is murder of fellow crew member justifiable
under specific circumstances or not. Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884).
[online] Available from: https://cyber.harvard.edu/eon/ei/elabs/majesty/stephens.html
[Accessed 1 August 2020].
33
Susskind, R. (2019) Online Courts and the Future of Justice. Oxford: Oxford University Press,
pp. 146–147.
34
Op. cit., pp. 165–176.
35
See CEPEJ European Ethical Charter on the use of artificial intelligence (AI) in judicial
systems and their environment. [online] Available from: https://www.coe.int/en/web/cepej/
cepej-european-ethical-charter-on-the-use-of-artificial-intelligence-ai-in-judicial-systems-
and-their-environment [Accessed 1 August 2020]; or Justice of the future: predictive justice
and artificial intelligence. [online] Available from: https://www.coe.int/en/web/cepej/justice-
of-the-future-predictive-justice-and-artificial-intelligence [Accessed 1 August 2020];
Vasdani, T. (2019) From Estonian AI judges to robot mediators in Canada, U.K. LexisNexis.
[online] Available from: https://www.lexisnexis.ca/en-ca/ihc/2019-06/from-estonian-ai-
judges-to-robot-mediators-in-canada-uk.page [Accessed 1 August 2020]; Numa, A. (2020)
Artificial intelligence as the new reality of e-justice. [online] Available from: https://e-estonia.
com/artificial-intelligence-as-the-new-reality-of-e-justice/ [Accessed 1 August 2020];
Danmarks Domstole. [online] Available from: https://www.minretssag.dk/frontpage
[Accessed 1 August 2020].
336 Masaryk University Journal of Law and Technology [Vol. 14:2
The main criticism to this part of the book is the lack of the technological
aspect. The author is introducing his vision of the online court system, but
he is not focusing on the technologies he suggests to involve.
36
Yalom, I. (2017) Becoming Myself: A Psychiatrist's Memoir. Basic Books, p. 306.
37
Susskind, R. (2019) Online Courts and the Future of Justice. Oxford: Oxford University Press,
pp. 210–214.
2020] A. Blechová, P. Loutocký: Online Courts and the Future of Justice ... 337
important to offer the solution than to meet face to face)38; these aspects are
however not mentioned in the book.39
The last topic we would like to mention is the digital exclusion.
According to Susskind, objection to online courts is that many people do not
have access to the Internet, or they do not have a necessary level
of computer literacy.40 Nevertheless, he is emptying this argument
by the fact that even non-users of the Internet are indirect beneficiaries
of the internet.41 He suggests that less confident users should be assisted
by online guidance, which will solve the problem with the lack of computer
literacy. To support his conclusion, Susskind mentions several statistics.42
Even though Susskind’s argumentation seems convincing we are critical
about it. Firstly, Susskind relies on statistics and data relevant only
to the United Kingdom. Secondly, he overlooks the digital skills gap
in Europe.43 Lastly, Susskind is not making any difference between
consuming the social media and using an online court.
5. THE FUTURE
The last part of the book is dedicated to the emerging technologies, AI,
computer judges and the global challenge. As the author mentions this final
part is about his predictions. 44 This approach caused the fact that some
of his ideas are not supported by any relevant source. The author
of the book is firstly exploring the emerging technologies as telepresence,
augmented reality or advanced ODR. He believes that these technologies
could be used in the current courtrooms.45
Another chapter is dedicated to the artificial intelligence (AI) and its
impact to future of online courts. Even though Susskind is highlighting that
38
Rule, C. (2012) Quantifying the Economic Benefits of Effective Redress: Large E-Commerce
Data Sets and the Cost-Benefit Case for Investing in Dispute Resolution. University
of Arkansas at Little Rock Law Review, 24 (4), pp. 767–777, p. 772 et seq.
39
To see more on that: Loutocký, P. (2019) Online Dispute Resolution as an Inspiration for
Contemporary Justice. Jusletter IT. Die Zeitschrift für IT und Recht, pp. 1–8, p. 2 et seq.
40
Susskind, R. (2019) Online Courts and the Future of Justice. Oxford: Oxford University Press,
p. 215.
41
Op. cit., p. 216.
42
Op. cit., pp. 216–218.
43
According to data from 2017 “[…] 169 million Europeans between 16 and 74 years – 44 % – do
not have basic digital skills.“ DG Connect, “The Digital skills Gap in Europe”, Digital Single
Market. [online] Available from: https://ec.europa.eu/digital-single-market/en/news/digital-
skills-gap-europe [Accessed 1 August 2020].
44
Susskind, R. (2019) Online Courts and the Future of Justice. Oxford: Oxford University Press,
p. 253.
45
Cisco’s telepresence, op. cit., pp. 255–258.
338 Masaryk University Journal of Law and Technology [Vol. 14:2
he has been focusing his research to AI and law, he is not consistent and
specific about the “AI“ systems he is proposing to use for example
in the Tier 3. He is briefly describing the different concepts of AI, its history
and breakthroughs, but he is not explaining how the AI works.46 We
consider this lack of explanation of technological aspect and clear definition
of AI as shortcoming of the book.
Subsequently, the author points out the “AI fallacy”; the view that only
way to get machines to outperform the best human lawyers is to copy
the way that human lawyers work. He claims that this is not a good
approach to AI in this context.47 We think that such author’s idea is exciting,
but since the programmers of AI will be humans, it is challenging
to imagine how AI could overcome this problem. Humans will program
the machine in the way how humans understand the law and legal
procedures. If we are then talking about different view (using neuron
networks or quantum computing), this should be introduced in the book
(and not ignored).
Penultimate chapter of the book is about the computer judge. Susskind is
examining the question Can machines replace human judges?, but he is not
giving a clear answer to it.48 Nevertheless, he is more focusing on prediction
machines. Even though, Susskind is dealing with moral boundaries of AI
replacing judges he is not mentioning the moral boundaries of predictive
systems. He also barely writes about bias problems of these systems49 and
he is ignoring their deficiencies, for example racial profiling 50, privacy
threads51 or misunderstanding of causal relationships52.
6. CONCLUSION
The Online Court and the Future of Justice is a great and complex introduction
and a guide to the topic. Susskind is mentioning many of his bright ideas
46
Op. cit., pp. 263–272.
47
Op. cit., pp. 272–273.
48
Op. cit., pp. 278–281.
49
Op. cit., p. 289.
50
Crawford, K., Schultz, J. (2013) Big Data and Due Process: Toward a Framework to Redress
Predictive Privacy Harms. Boston College Law Review, 55 (93). [online] Available from:
https://ssrn.com/abstract=2325784 [Accessed 1 August 2020].
51
Stroud, M. (2014) The minority report: Chicago's new police computer predicts crimes, but is it
racist? The Verge. [online] Available from: https://www.theverge.com/2014/2/19/5419854/
the-minority-report-this-computer-predicts-crime-but-is-it-racist [Accessed 1 August 2020].
52
Sgaier, S., Huang, V., Charles, G. (2020) The Case for Causal AI. Stanford Social Innovation
review, 18 (3). [online] Available from: https://ssir.org/articles/entry/the_case_for_causal_ai#
[Accessed 1 August 2020].
2020] A. Blechová, P. Loutocký: Online Courts and the Future of Justice ... 339
and experiences and the language of the book is accessible for general
public. The book is easy to read and easy to understand which is hard
to achieve in such a complex topic.
Despite that, some of the issues just scratch the surface and the author is
not developing his ideas in a depth. This is however understandable for
the sake of consistency and length of the book. The significant shortcoming
of the book is the lack of the technological aspect of suggested online court
tools and systems. The author of the book is not explaining how the system
will work. Moreover, we believe that since the online courts would be
closely associated with technology, as predictive systems or AI
in the future, it is crucial to dedicate some part of the book to understand
the systems and suggested technologies. In the best scenario this part
of the book should have been a cooperation with computer scientists.
On the other hand, we are convinced that the suggested automatization
and autonomous systems are a step in the right direction. Despite
the criticism, the book is the only complex work on online courts.
In conclusion, if there is any desire to understand the future of justice, we
have to recommend this book as one of the important foundations.
LIST OF REFERENCES
[1] Caliskan, A., Bryson, J. J., Narayanan, A. (2017) Semantics derived automatically from
language corpora contain human-like biases. Science, 356 (6334). [online] Available from:
[2] CEPEJ European Ethical Charter on the use of artificial intelligence (AI) in judicial
cepej/cepej-european-ethical-charter-on-the-use-of-artificial-intelligence-ai-in-judicial-
[4] Clement, J. (2020) Worldwide digital population as of July 2020. [online] Available from:
https://www.statista.com/statistics/617136/digital-population-worldwide/
[5] Crawford, K., Schultz, J. (2013) Big Data and Due Process: Toward a Framework
to Redress Predictive Privacy Harms. Boston College Law Review, 55 (93). [online]
[6] D’Amato, A. (1977) Can/Should Computers Replace Judges? Georgia Law Review, 11.
340 Masaryk University Journal of Law and Technology [Vol. 14:2
[8] DG Connect, “The Digital skills Gap in Europe”, Digital Single Market. [online]
[10] Justice of the future: predictive justice and artificial intelligence. [online] Available from:
https://www.coe.int/en/web/cepej/justice-of-the-future-predictive-justice-and-artificial-
[12] Loutocký, P. (2016) Online Dispute Resolution to Resolve Consumer Disputes from
the perspective of European Union Law: Is the Potential of ODR Fully Used? Masaryk
[13] Numa, A. (2020) Artificial intelligence as the new reality of e-justice. [online] Available from:
https://e-estonia.com/artificial-intelligence-as-the-new-reality-of-e-justice/
[14] Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884). [online] Available from: https://cyber.
[16] Rozenberg, J. The Civil Resolution Tribunal. The Online Court: will IT work? The Legal
[17] Rule, C. (2012) Quantifying the Economic Benefits of Effective Redress: Large
E-Commerce Data Sets and the Cost-Benefit Case for Investing in Dispute Resolution.
[18] Scherer, M. (2019) Artificial Intelligence and Legal Decision-Making: The Wide Open?
[19] Sgaier, S., Huang, V., Charles, G. (2020) The Case for Causal AI. Stanford Social Innovation
[20] Stroud, M. (2014) The minority report: Chicago's new police computer predicts crimes, but is it
2020].
[21] Surden, H. (2018) Machine Learning and Law. Washington Law Review, 89 (1).
[22] Susskind, R. (1996) The Future of Law. Oxford: Oxford University Press.
[23] Susskind, R. (2000) Transforming the Law. Oxford: Oxford University Press.
[24] Susskind, R. (2017) Tomorrow's Lawyers. Second Edition. Oxford: Oxford University Press.
[25] Susskind, R. (2019) Online Courts and the Future of Justice. Oxford: Oxford University
Press.
[26] Vasdani, T. (2019) From Estonian AI judges to robot mediators in Canada, U.K. LexisNexis.
[28] Završnik, A. (2019) Algorithmic justice: Algorithms and big data in criminal justice