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Law and Technology in Civil Judicial Procedures
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Abstract and Keywords
This chapter analyses how technological systems shape the actions and the outcomes of
judicial proceedings, through discussing the regulative regimes underpinning technical
and legal deployment. The negotiation, mediation, or conflict between law and technology
offer a new dimension to account for the digital transformation shaping the institutional
settings and procedural frameworks of judicial institutions. These changes are not just
instances of applied law, but are also the result of the transformation of law evolving into
technological deployments. The chapter concludes that technological innovation in the
judiciary unfolds in techno-legal assemblages. Technologies shape judicial institutions as
they translate formal rules and existing practices into the code of technology. At the same
time, technologies call for new regulations, which make legally compliant the use of given
technological components within judicial proceedings. Such new techno-legal
assemblages generate new institutional settings and profound changes in the
administration of civil justice.
Keywords: e-justice, e-government, techno-legal assemblages, civil proceedings, court technology, case
management systems, e-filing, integrated judicial systems
1. Introduction
ALL over the world, governments are investing in information and communication
technology (ICT) to streamline and modernize judicial systems, by implementing
administrative and organizational reforms and procedural rationalization by digitization.
The implementation of these reforms might foster administrative rationalization, but it
also transforms the way in which public sector organizations produce and deliver
services, and the way in which democratic institutions work (Fountain 2001; Castells and
Law and Technology in Civil Judicial Procedures
Francesco Contini and Antonio Cordella
The Oxford Handbook of Law, Regulation and Technology
Edited by Roger Brownsword, Eloise Scotford, and Karen Yeung
Print Publication Date: Jul 2017 Subject: Law, IT and Communications Law, Civil Law
Online Publication Date: Oct 2016 DOI: 10.1093/oxfordhb/9780199680832.013.47
1
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Cardoso 2005; Fountain 2005). This chapter discusses the effects that digital
transformations in the judiciary have on the services provided. The chapter argues that
the introduction of ICT in the judiciary is not neutral and leads to profound
transformations in this branch of the administration. The digitalization of judicial systems
and civil proceedings occurs in a peculiar institutional framework that offers a unique
context in which to study the effects that the imbrication of technological and legal
systems have on the functioning of judicial institutions. The deep and pervasive
layer of formal regulations that frames judicial proceedings shows that the intertwined
dynamics of law and technology have profound impacts on the application of the law. In
the context of the judiciary, law, and technology are moulded in complex assemblages
(Lanzara 2009) that shape the interpretation and application of the law and hence the
value generated by the action of the judiciary (Contini and Cordella 2015).
To discuss the effects of ICT on judicial action, this chapter outlines the general trends in
e-justice research. It provides a detailed account of the reason why ICT in the judiciary
has regulative effects that are as structural as those of the law. Examples from civil
procedure law are discussed to outline how the imbrication of law and technology creates
techno-legal assemblages that structure any digitized judicial proceeding. We then
discuss the technological and managerial challenges associated with the deployment of
these assemblages, and conclude.
2. E-justice: Seeking a Better Account of Law
and Technology in Judicial Proceedings
E-justice plans have been mostly conceived as carriers of modernization and
rationalization to the organization of judicial activities. Accordingly, e-justice is usually
pursued in order to improve the efficiency and effectiveness of judicial procedure.
Accordingly, e-justice literature has often failed to account for the institutional,
organizational, and indeed judicial, transformations associated with the deployment of
ICT in the judiciary (Nihan and Wheeler 1981; McKechnie 2003; Poulin 2004; Moriarty
2005). ICT adoptions in the public sector and in the judiciary carry political, social, and
contextual transformation that calls for a richer explanation of the overall impacts that
public sector ICT-enabled reforms have on the processes undertaken to deliver public
services and on the values generated by these services (Cordella and Bonina 2012;
Contini and Lanzara 2014; De Brie and Bannister 2015).
E-justice projects have social and political dimensions, and do not only impact on
organizational efficiency or effectiveness (Fabri 2009a; Reiling 2009). In other words, the
impact of ICT on the judiciary may be more complex and difficult to assess than the
impact of ICT on the private sector (Bozeman and Bretschneider 1986; Moore 1995;
Frederickson 2000; Aberbach and Christensen 2005; Cordella 2007). By failing to
recognize this, e-justice literature and practice has largely looked at ICT only in terms of
(p. 247)
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efficiency and costs rationalization. While valuable to assess the organizational
and economic impacts of ICT in the private sector, these analyses fall short of fully
accounting for the complexity of the impacts that ICT has on the transformation of the
judiciary (Fountain 2001; Danziger and Andersen 2002; Contini and Lanzara 2008).
By addressing these impacts, this chapter discusses the digitalization of judicial
procedures as context-dependent phenomena that are shaped by technical, institutional,
and legal factors that frame judicial organizations and the services they deliver.
Accordingly, ICT-enabled judicial reforms should be considered complex, context-
dependent, techno-institutional assemblages (Lanzara 2009), wherein technology acts as
a regulative regime ‘that participates in the constitution of social and organizational
relations along predictable and recurrent paths’ (Kallinikos 2006: 32) just as much as the
institutional and legal context within which it is deployed (Bourdieu 1987; Fountain 2001;
Barca and Cordella 2006). E-justice reforms introduce new technologies that mediate
social and organizational relations that are imbricated and therefore also mediated by
context-dependent factors such as cultural and institutional arrangements as well as the
law (Bourdieu 1987; Cordella and Iannacci 2010; De Brie and Bannister 2015).
To discuss these effects, the analysis offered by this chapter builds on the research
tradition that has looked at the social, political, and institutional dimensions associated
with the deployment of ICT in the public sector (Bozeman and Bretschneider 1986;
Fountain 2001; Gil-Garcia and Pardo 2005; Luna-Reyes and others 2005; Dunleavy and
others 2006). The chapter contributes to this debate by offering a theoretical elaboration
useful for analysing and depicting the characteristics that make interactions between ICT
and law so relevant in the deployment of e-justice policies.
To fulfil this task, we focus on the regulative characteristics of ICT, which emerge as the
result of the processes through which ICT frames law and procedures and hence the
action of public sector organizations (Bovens and Zouridis 2002; Luhmann 2005;
Kallinikos 2009b). When e-justice literature has looked at the technical characteristics of
technology, it has mostly considered ICT as a potential enabler of a linear transformation
of judicial practices and coordination structures (Layne and Lee 2001; West 2004). E-
justice literature mainly conceives ICT as a tool to enhance the productivity processes in
the judiciary providing a more efficient means to execute organizational practices while
the same literature tends to neglect that ICT encompasses properties that frame the
causal connection of the organizational practices, events, and processes they mediate
(Kallinikos 2005; Luhmann 2005). Indeed, ICT does not simply help to better execute
existing organizational activities but rather offers a new way to enframe (Ciborra and
Hanseth 1998) and couple in a technically predefined logical sequences of actions the
organizational procedures and practices they mediate (Luhmann 2005). Thus, ICT
constructs a new set of technologically mediated interdependences that regulate the way
in which organizational procedures and processes are executed. ICT structures
social and organizational orders, providing stable and standardized means of interaction
(Bovens and Zouridis 2002; Kallinikos 2005) shaped into the technical functionalities of
the systems. Work sequences and flows are described in the technological functions,
(p. 248)
2
(p. 249)
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standardized and stabilized in the scripts and codes that constitute the core of the
technological systems. The design of these systems does therefore exclude other possible
functions and causalities by not including relational interdependencies into the scripts of
the technology (Cordella and Tempini 2015).
When organizational activities or practices are incorporated into ICT, they are not
rationalized in linear or holistic terms—as is assumed by the dominant instrumental
perspective of technology—rather, they are reduced to a machine representable string,
and coupled to accommodate the logic underpinning the technological components used
by that computer system. Alternative underpinning logics, such as different ontological
framings, vary as they structure the world in different logical sequences, so that the
holistic concept of technical rationalization is useless once it is recognized that
alternative technical artefacts reduce complexity into their different logical and
functional structures. Work processes, procedures, and interdependences are
accommodated within the functional logic of technology and, therefore, described to
reflect the logical sequences that constitute the operational language of ICT. These work
sequences are therefore redesigned in order to accommodate the requirements that are
used to design ICT systems. Once designed, an ICT system clearly demarcates the
operational boundaries within which it will operate, by segmenting the sequences of
operations executed by the system and the domains within which these sequences will
operate.
As a consequence, the work sequences, procedure, practices, and interdependences are
functionally simplified to accommodate the language and logical structure underpinning
the functioning of the chosen technology. Information technology not only creates these
causal and instrumental relations but also stabilizes these relations into standardized
processes that ossify the relations. Functional closure is the effect of the standardization
of these relations into stable scripts: the creation of the kernel of the system (Kallinikos
2005). As a result, an ICT system becomes a regulative regime (Kallinikos 2009b) that
structures human agencies by inscribing paths of actions, norms, and rules so that the
organizations adopting these technologies will be regulated in their actions by the scripts
of the ICT system, and the limitations of those scripts. In the context of e-justice, the
regulative nature of technology must negotiate with the pre-existing regulative nature of
the law, and with the new regulative frameworks enacted to enable the use of given
technological components. These negotiations are very complex and have very important
consequences on the effects of the action of the judiciary.
When studying and theorizing about the adoption of ICT in the judiciary, these regulative
properties of ICT should be placed at the centre of the analysis in order to better
understand the implications and possible outcomes of these ICT adoptions on the
outcome of judicial practices and actions (Contini and Cordella 2015; Cordella and
Tempini 2015).
(p. 250)
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3. Technology in Judicial Procedures
Judicial procedures are regulated exchanges of data and documents required to take
judicial decisions (Contini and Fabri 2003; Reiling 2009). In a system of paper-based civil
procedure, the exchange of information established by the rules of procedure is enabled
by composite elements such as court rules, local practices, and tools like dockets, folders,
forms with specific and shared formal and technical features. ICT developments in justice
systems entail the translation of such conventional information exchanges into digitally
mediated processes. Technological deployments in judicial proceedings transform into
standardized practices the procedural regulations that establish how the exchange shall
be conducted. The exchange can be supported, enabled, or mediated by different forms of
technologies. This process is not new, and not solely associated with the deployment of
digital technologies.
Judicial procedures have in fact always been supported by technologies, such as court
books or case files and case folders used to administrate and coordinate judicial
procedures (Vismann 2008). The courtroom provides a place for the parties and the judge
to come together and communicate, for witnesses to be sworn and to give evidence, and
for judges to pronounce binding decisions. All these activities are mediated and shaped
by the specific design of the courtroom. The bench, with its raised position, facilitates the
judge’s surveillance and control of the court. Frames in the courtroom often contain a
motto, flag, or other symbol of the authority of the legal pronouncement (Mohr 2000;
2011). This basic set of technologies, associated with the well-established roles and
hierarchical structure of judiciaries (Bourdieu 1987) have shaped the process by which
the law is enforced and the way in which legal procedures are framed over many
centuries (Garapon 1995). Even if the ‘paperless’ future, promised by some authors
(Susskind 1998; Abdulaziz and Druke 2003), is yet to happen, ICT has proliferated in the
judicial field. A growing number of tasks traditionally undertaken by humans dealing with
the production, management, and processing of paper documents are now digitized and
automatically executed by computers. Given the features of ICT, the way in which these
procedures can be interpreted and framed is constrained by the technical features that
govern the functionalities of these technologies (see section 2). These features are
defined by technical standards, hardware, and software components, as well as by private
companies involved in the development of the technology, and by technical bodies
that establish e-justice action plans. The deployment of these ICT solutions might subvert
the hierarchical relationships that have traditionally governed the judiciary, and hence
deeply influence the power and authority relations that shape the negotiations and
possible outcome of the interpretation of the law that the judiciary carries out. ICT
ultimately defines new habitats within which the law is interpreted and hence the values
it carries forward.
(p. 251)
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The many ICT systems that have been implemented to support, automate, or facilitate
almost all the domains of judicial operations offer a very interesting ground to position
the study of the impact that the adoption of ICT has had on the action and outputs of the
judiciary.
4. The Imbrication of Law and Technology:
Techno-Legal Assemblages
There is a plethora of technological systems implemented to support, rationalize, and
automate judicial procedure. None of these systems are neutral in the impact they have
on the organization and functioning of the judiciary. Legal information systems (LISs)
provide up-to-date case law and legal information to citizens and legal professionals
(Fabri 2001). LISs contribute to the selection of relevant laws, jurisprudence, and/or case
law, shaping the context within which a specific case is framed. Case management
systems (CMSs) constitute the backbone of judicial operation. They collect key case-
related information, automate the tracking of court cases, prompt administrative or
judicial action, and allow the exploitation of the data collected for statistical, judicial, and
managerial purposes (Steelman, Goerdt, and McMillan 2000). Their deployment forces
courts to increase the level of standardization of data and procedures. CMSs structure
procedural law and court practices into software codes, and in various guises reduce the
traditional influence of courts and judicial operators over the interpretation of procedural
law. E-filing encompasses a broad range of technological applications required by case
parties and courts to exchange procedural documents. E-filing structures the sequences
of the judicial procedures by defining how digital identity should be ascertained, and
what, how, and when specific documents can be exchanged and become part of the case.
Integrated justice chains are large-scale systems developed to make interoperable (or
integrated) the ICT architectures used by the different judicial and law enforcement
agencies: courts, police, prosecutors’ offices, and prisons departments might
change the administrative responsibility on the management of the investigation and
prosecutions when their actions are coordinated via integrated ICT architectures (Fabri
2007; Cordella and Iannacci 2010). Videoconference technologies provide a different
medium to hold court hearings: witnesses can appear by video, and inmates can attend at
the hearing from a remote position. They clearly change the traditional layout of court
hearings and the associated working practices (Lanzara and Patriotta 2001; Licoppe and
Dumoulin 2010) and ultimately the legal regime and conventions that govern hearings.
All these computer systems interact with traditional legal frameworks in different and
sometimes unpredictable ways. They not only impact the procedural efficiency of legal
proceedings, but can also shape their outcomes. These deeper impacts of LISs, CMSs,
video technology, and e-filing systems will be considered in turn.
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4.1 Legal Information Systems
LISs give rise to a limited number of regulatory questions, mainly related to the
protection of the right to privacy of the persons mentioned in the judgments, balanced
with the principle of publicity of judicial decisions. However, as LISs make laws and cases
digitally available, this might affect the way in which laws and cases are substantively
interpreted. It is easier for civil society and the media to voice their interpretation of the
law on a specific case or to criticize a specific judgment based on pre-existing court
decisions. This potentially affects the independence of the judiciary, since LISs are not
necessarily neutral in the process by which they identify relevant case law and
jurisprudence. They can promote biased legal interpretations, or establish barriers to
access to relevant information, becoming an active actor in the concrete application of
the law. Once the search engine and the jurisprudential database are functionally
simplified and closed in a search algorithm, it can become extremely difficult to ascertain
whether the search system is truly neutral, or the jurisprudence database complete.
4.2 Case Management Systems
CMSs are mainly developed to automate existing judicial procedures. The rules
established by the code of procedure are deployed in the system to standardize the
procedural flow. This reduces the different interpretations of procedural laws made by
judges and clerks to those functionally simplified and closed into the software code and
system architecture. The use of discretion is further reduced by interfaces that force
organizational actors to enter the data as requested by the system. The interfaces
also force users to follow specific routines, or to use pre-established templates to produce
judicial documents.
The implications of such changes are numerous. A more coherent application of
procedural law can be consistent with the principle of equality. A more standardized data
collection is a prerequisite for reliable statistical data. However, there can also be critical
issues. The additional layer of standardization imposed by technology can make the
application of the judicial procedure to local constraints difficult. This may lead to ‘work-
arounds’ to bypass the technological constraints and allow execution of the procedure
(Contini 2000). CMSs also increase the transparency of judicial operations, leading to
increased control of judges, prosecutors and the administrative staff.
4.3 Video Technologies
The use of video technologies, particularly videoconferencing, changes the well-
established setting of court hearings. Court hearings are not akin to standard business
videoconferences. Legal and functional requirements, easily met in oral hearings, are
difficult to replicate in videoconference-mediated hearings. For example, parties must be
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able to monitor whether a witness is answering questions without external pressures or
suggestions; private communication between the lawyer and the defendant shall be
guaranteed; all the parties involved in the hearing must have the same access and
complete understanding of ongoing events. To meet these conditions, specific
technological and institutional arrangements are needed (Rotterdam and van den Hoogen
2011). These arrangements are usually authorized by legal provisions; legislators can also
detail the features or the functional requirements to be fulfilled by technologies to
guarantee that videoconference hearings comply with the requirements as mentioned,
and the right to a fair trial.
4.4 E-filing Systems
The imbrications of law and ICT, which clearly emerge in the discussion of the effects of
the aforementioned e-justice systems, are modest in comparison to those found when e-
filing is concerned. In these cases, the introduction of electronic documents and
identification creates a new context where the authenticity, integrity, and non-repudiation
of the electronic documents, along with the issue of identification, have to be managed.
E-filing introduces the need for interoperability and data and document interchange
across different organizations, which must be addressed by finding solutions that suit all
the technological architectures and the procedural codes that are in use within the
different organizations.
The identification of the parties is the first formal step needed to set up any civil
judicial proceeding and must be ascertained in a formal and appropriate manner such as
by authorized signatures on the proper procedural documents, statements under oath,
identity cards, and so on. Any procedural step is regulated by the code of procedure and
further detailed by court rules. When e-filing is deployed, it is difficult and challenging to
digitize these procedures without negotiating the pre-existing requirements imposed by
the law with the constraints impose by the technological design and the need of
interoperability across the different organization sharing the system.
In Europe, for example, digital signatures based on Directive 1999/93/EC are often
identified as the best solution to guarantee the identity of the parties, check their
eligibility to file a case, authenticity, and non-repudiation of the documents exchanged
(Blythe 2005). They are therefore one of the pre-requisites for e-filing in a large number
of European countries. Given the legal value associated with the digital signature, the
standards and technological requirements are often imposed by national laws (Fabri
2009b). The implementation of these legal standards has frequently been more difficult
than expected, and required not only challenging software development, but also a long
list of legislative interventions needed to guarantee the legal compliance of a digital
signature. In Italy, for example, it took about eight years to develop the e-filing system
along with the necessary legislative requirements (Carnevali and Resca 2014). Similar
complex developments occurred in Portugal (Fernando, Gomes, and Fernandes 2014) and
(p. 254)
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France (Velicogna, Errera, and Derlange 2011). These cases are good examples that
reflect the imbrication of law and technology when e-justice is concerned.
4.5 Integrating Justice Systems
The integration of judicial systems to facilitate the coordination of activities across
different judicial offices can even redefine the legal arrangements that govern the roles
and jurisdiction of each office, and thus the overall organization of the judiciary. An
example of these potential effects is the case of the ‘gateway’ introduced in England and
Wales to facilitate the exchange of information across the criminal justice chain. The
gateway has led to a profound transformation of the role of the police and the Crown
Prosecution Service (CPS) in the investigation of criminal activities. The gateway,
providing updated investigative information to prosecutors, has changed the relationship
in the judicial system. This new configuration is such that not the Police but the CPS
leads investigation, de facto changing the statutory law and hence imposing a
‘constitutional transformation’ in the England and Wales constitutional arrangements
(Cordella and Iannacci 2010).
The analysis of the imbrications of law and technology in the judiciary in this
section highlights two parallel phenomena. Technology functionally simplifies and closes
the interpretation and application of the law reducing legal code into the code of
technology (Lessig 2007). At the same time, the technology, to have legal value and hence
to be effective, needs to be supported by a legal framework that authorizes the use of the
technological components, and therefore enforces the technological mediated judicial
procedure. This dual effect is peculiar to the judiciary and needs to be taken into serious
consideration where the digitalization of legal procedures is concerned. Technology and
law must support the same procedures and guarantee cross-interoperability. If a
technology works (i.e. produces the desired outcomes) but it is not supported by the legal
framework, it will not produce any procedural effect. The nature of the judiciary
necessitates the alignment of both law and technology to guarantee the effectiveness of
judicial proceedings (see section 5). The search for this alignment might lead to the
creation of more complex civil judicial procedures that are harder to manage.
5. Techno-Legal Assemblages: Design and
Management Issues
As we have seen, the implementation of new technological components often requires the
deployment of new statutes or regulations to accommodate the use and functioning of the
ICT system, as for example in the case of the video technologies. In this context, as noted
in the study of Henning and Ng (2009), law is needed to authorize hearings based on
videoconferencing, but the law itself is unable to guarantee a smooth functioning of the
(p. 255)
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technology. Indeed, it can be difficult, if not impossible, to regulate, ex ante, innovative
ICT-based working practices, such as the one that has emerged with the use of
videoconferencing systems (Lanzara 2016). Furthermore, technological systems are not
always stable and reliable. They frequently ‘shift and drift’ making it difficult to maintain
the alignment between ICT-enabled working practices and legal constraints (Ciborra and
others 2000). Ex ante regulation, therefore, cannot be exhaustive and the actual outcome
is mediated by the way in which ICT deploys the regulation.
Every regulation of technology is composed of technical norms, established within
technical domains to specify the technical features of the systems, but also of rules
designed to inform the adoption of the technology that clearly demarcate the boundaries
of what ICT shall or shall not do. Thus, technology does not reduce the level of regulation
leading to more efficient and hence more effective judicial procedures. Rather,
the development of technology to enable judicial proceedings calls for new regulations
creating a more complex and not necessarily a more efficient judicial system. The
digitization of judicial practices deals with two distinct domains of complexity to be
managed. The first domain concerns the adoption or the development of the technological
standards needed to establish the connection and to enable technical interoperability
across the technological architecture. These developments concern the definition of the
technological components needed to allow the smooth circulation of bits, data, and
information. The development of this technological interoperability, which would be
sufficient in other domains, does not guarantee the efficacy of judicial procedures. The
procedural regulation imposed by the technological systems and architectures in fact
needs to comply with and guarantee ‘interoperability’ with the regulatory requirements of
the principles of the law that govern a given judicial activity or process. Technology
cannot be arbitrarily introduced in judicial proceedings, and the effects of technology into
proceedings have to be carefully ascertained. Technology needs to comply with the
prescription of the law, and its legal compliance is a prerequisite of its effectiveness. In
the judiciary, effectiveness of technology relates not only to the technical ability of the
system to support and allow for the exchanges of bits, data, and information, but also to
the capacity of the system and hence of ICT generally to support, enable, and mediate
actions that produce the expected legal outcome within the proceedings. Technology-
enabled procedural steps must produce the legal outcomes prescribed by the legal
system and the legal effects must be properly signalled to all those involved in the
procedure (Contini and Mohr 2014).
To achieve this result, it is not enough to design a technological solution that guarantees
the needed functionalities to collect and transfer the data and the pieces of information
required to fulfil a specific task in judicial proceedings. Given the legal constraints,
various standard technological components ubiquitously used, such as email or secured
websites, may not work for judicial procedures. When this occurs, ad hoc developments
are needed to make the technological solution compliant with the legal architecture. The
need to guarantee technical and legal interoperability, which is ultimately a requirement
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of an effective e-judicial system, may increase the architectural complexity, making more
difficult the identification of solutions that are technically sound and compliant with legal
constraints. Given the complexity of the legal and technological domains in the context of
e-justice, this equilibrium is difficult to achieve and maintain.
The search for technical interoperability can lead to the introduction of technologically
mediated procedural actions, which do not fulfil the legal requirements governing the
relevant judicial procedure. Every action enabled, recorded, and circulated through e-
filing, CMSs, or videoconferencing must comply with pre-established procedural rules
provided by judicial laws and regulations. These laws and regulations have often been
framed with paper-based or oral procedures in mind. ICT changes the sequence and the
nature of many procedures. This technologically mediated procedural flow can
contrast with the logics that govern paper-based or oral proceedings and hence be
incompatible with the legal norms and regulations established to govern these
proceedings. Tasks and operations prescribed by pre-existing legal texts can be difficult
to inscribe into ICT. Procedures designed to work in a conventional domain based on
paper and face-to-face relations are not necessarily compatible with those rationalized
into the logics of ICTs. As previously noted, the migration of a simple gesture, as the
signature, from paper to digital form proved to be particularly complex to be
accommodated into the law.
In some cases, as with the Finnish e-filing system, the English Money Claims Online, and
more recently with the Slovenian Central Department for Enforcement (COVL), the
necessary techno-legal interoperability has been achieved by reforming the legal
framework along with the design of the technology to guarantee technological as well as
legal interoperability and compliance (Kujanen and Sarvilinna 2001; Kallinikos 2009a;
Strojin 2014). In these three cases, the handwritten signature foreseen in the old paper-
based procedure has been replaced by ad hoc solutions that allow for different signature
modes. These solutions have made e-filing applications accessible to lawyers and citizens,
finding a sustainable mediation between the legal and technological requirements.
There are, conversely, many cases where the pre-existing procedural framework
remained unchanged, so that very complex technological architectures had to be
designed to comply with the legal and procedural architectures (Contini and Mohr 2014).
Most of the cases of high technological complexity of e-justice solutions, especially where
e-filing is concerned, are a consequence of the need to guarantee the legal
interoperability of the digital mediated proceedings with pre-existing procedural
frameworks designed only to enable a paper-based or oral proceeding. The search for the
interoperability across legal and technological architectures may become particularly
complex and difficult to deploy, maintain, and sustain over time (Lanzara 2014).
Moreover, it can lead to the design of configurations that are cumbersome and difficult to
use. An example is the case of the multimillion-pound failures of EFDM and e-Working at
the Royal Courts of Justice in London. The systems became extremely complex,
expensive, and difficult to use as a consequence of the complexity embedded into the
(p. 257)
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architecture to maintain technological and legal interoperability and compliances
(Jackson 2009; Collins-White 2011; Hall 2011).
In order to maintain legal and technological interoperability in parallel with the
development or deployment of e-justice solutions, reconfiguration of the pre-existing legal
and procedural framework is needed. This reconfiguration must enforce the alignment of
the technological and legal constraints. This alignment is the result of an ongoing
negotiation between ICT and pre-existing institutional and legal components (formal
regulations in particular), which is always needed to maintain interoperability across the
regulative regimes imposed by both the technology and the law.
In the case of civil proceedings, ICT is designed to execute tasks and procedures
that are largely—but neither exclusively nor unequivocally—derived from legal texts, code
of procedures, and other formal rules. Once legally regulated tasks are functionally
simplified and closed into the technological architecture, they might change the way in
which judicial procedures are executed, and might also change the interpretation of the
law. As discussed in section 2, technology functionally simplifies and closes the execution
of tasks imposing its one regulative regime. As noted by Czarniawska and Joerges (1998),
with technological deployment:
societies have transferred various institutional responsibilities to machine
technologies and so removed these responsibilities from everyday awareness and
made them unreadable. As organised actions are externalised in machines, and as
these machineries grow more complicated on even larger scale, norms and
practices of organizing progressively devolve into society’s material base:
inscribed in machines, institutions are literally ‘black boxed’. (Czarniawska and
Joerges 1998: 372)
In other terms, once a procedure is inscribed into the ICT, it may become very difficult to
challenge the technologically mediated procedure. Therefore, ICT acts as an autonomous
regulative regime (Kallinikos 2009b), on the one hand triggering various processes of
statutory and regulative changes, and leading to different interpretation of the pre-
existing legal framework on the other. Therefore, such assemblages intrinsically produce
unstable outcomes (Contini and Cordella 2015). This instability is the result of two
distinct phenomena: first, the technology and the law both create path dependences, and,
second, technology and law remain as autonomous regulative regimes.
The technological deployments in specific court operations (such as case tracking and
legal information) create the need for technological deployments in other areas of court
operations, as well as the implementation of updated technological systems across a
court’s offices. Looking at the last 20 years of ICT development in judicial systems, there
is clear technological path dependence that began with the deployment of simple
databases used for tracking cases and evolved into integrated justice chains (Contini
(p. 258)
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2001; Cordella and Iannacci 2010) that are now unfolding in transnational integrated
judicial systems such as e-Codex in the European Union (Velicogna 2014).
In parallel, national and European regulators are constantly implementing new legislation
that, in a paradoxical manner, requires new regulations to be implemented effectively.
This is the case, for example, of the implementation of the European small claim, or of the
European order for payment regulations, which have required national changes in the
code of procedure and in by-laws. The law, parallel to the technology, creates path
dependences that demand constant intervention to maintain them. Even if law and
technology are designed to affect or interact with external domains, they largely remain
autonomous systems (Ellul 1980; Fiss 2001).
As noted above, each new normative (or technological) development is path
dependent in relation to pre-existing normative or technological developments. In other
words, they are two different regulative regimes (Hildebrandt 2008; Kallinikos 2009b).
The two regimes have autonomous evolutionary dynamics that shape the nature of the
techno-legal assemblages enabling civil proceedings. Legislative changes may require
changes in technologies already in use or even to ‘wipe out’ systems that function well
(Velicogna and Ng 2006). Similarly, new technologies cannot be adopted without the
implementation of changes to the pre-existing legal frameworks.
Three cases are discussed in the next section as explicit alternative approaches suitable
for managing the complexity associated with the independent evolutionary dynamics of
law and technology when techno-legal assemblages are concerned in the context of civil
justice (Lanzara, 2009: 22).
6. Shift and Drift in Techno-legal Assemblages
The Italian Civil Trial Online provides the first example of how independent evolutionary
dynamics in techno-legal assemblages can change the fate of large-scale e-justice
projects. Since the end of the 1990s, the Italian Ministry of Justice has attempted to
develop a comprehensive e-justice platform to digitize the entire set of civil procedures,
from the simplest injunctive order to the most demanding high-profile contentious cases.
The system architecture designed to support such an ambitious project was framed
within a specific legal framework and by a number of by-laws, which further specified the
technical features of the system. To develop the e-justice platform within the multiple
constraints of such a strict legal framework took about five years, and when, in 2005,
courts were ready to use the system, an unexpected problem emerged. The local bar
associations were unable to bear the cost needed to design and implement the interface
required by lawyers to access the court platforms. This led the project to a dead end
(Fabri 2009b). The project was resuscitated and became a success when ‘certified email’
(p. 259)
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was legally recognized by a statutory change promoted by the government IT agency
(Aprile 2011).
Registered electronic mail offered a technological solution to allow lawyers to access the
court platform. The IT department of the Ministry of Justice decided to change the
architecture (and the relative legislation) to adopt the new technological solution
granting lawyers access to the court platform (Carnevali and Resca 2014). Such a
shift in the techno-legal architecture reduced the complexity and the costs of integration,
enabling swift adoption of the system. As a result, in 2014 the Civil Online Trial has
become mandatory for civil proceedings.
The development of e-Barreau, the e-filing platform of French courts, showed a similar
pattern. A strict legal framework prescribed the technologies to be used (particularly the
digital signature based on EU Directive 1999/93/EC) to create the system. Various by-
laws also specified technical details of the digital signature and of other technological
components of the system. Changes to the code of procedures further detailed the
framework that regulated the use of digital means in judicial proceedings. Once again,
problems emerged when the national bar association had to implement the interface
needed to identify lawyers in the system and to exchange procedural documents with the
courts. Again, the bar association chose a solution too expensive for French lawyers.
Moreover, the chosen solution, based on proprietary technologies (hardware and
software) did not provide higher security than other less expensive systems. The result
was a very low uptake of the system. The bar of Paris (which managed to keep an
autonomous system with the same functionalities running at a much lower cost) and the
bar of Marseille (who found a less expensive way to use the technological solution of the
National bar association) showed alternative and more effective ways to develop the
interoperability required (Velicogna, Errera, and Derlange 2011). This local development
raised conflicts and legal disputes between the national bar, the service provider, and the
local bar associations. As a result, the system failed to take off for a long time (Velicogna
2011). In this case, the existence of different technological solutions that were legal
compliant and with similar functionalities, but different costs and sponsors, made it
difficult to implement a suitable solution for all the parties involved. Also, where rigid
legal frameworks exist to regulate the technology, it might be difficult to limit the choice
of the technology to one solution. This case shows that legal regulation is therefore not
enough to guarantee technological regulation.
The case of e-Curia, at the Court of Justice of the European Union, highlights a different
approach to e-justice regulation. The Court of Justice handles mainly high-profile cases, in
multilingual procedures, with the involvement of parties coming from different European
countries. This creates a very demanding framework for e-justice development, since
parties’ identification, and exchange of multilingual procedural documents, generates a
high level of information complexity to be dealt with by ICT-enabled proceedings.
However, despite the complexity and the caseload profile, e-Curia has successfully
supported e-filing and the electronic exchange of procedural documents since 2011. The
approach to technology regulation adopted by the Court is one of the reasons for this
3
(p. 260)
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success. In 2005, a change in the Court’s rules of procedure set up the legal framework
for the technological development. This framework established that the Court might
decide the criteria for the electronic exchange of procedural documents, which
‘shall be deemed to be the original of that document’ (CJEU 2011, art 3). Unlike the
Italian and French cases discussed, the provision is general and does not identify the use
of specific technological solutions, not even those foreseen by the EU. This legal change
provided an open legal framework for the development of the e-justice platform. Indeed,
system development was not guided by statutes or legal principles, but by other design
principles: the system had to be simple, accessible, and free of charge for the users. The
security level had to be equivalent to the level offered by conventional court proceedings
based on exchange of documents through European postal services (Hewlett, Lombaert,
and Lenvers 2008).
However, also in e-Curia the development of the e-justice system was long and difficult.
This was mainly caused by the challenges faced in translating the complex procedures of
the court into the technological constraints of digital media. In 2011, after successful
tests, the Court was ready to launch e-Curia to the external users. This approach, with
ICT development carried out within a broad and unspecific legal framework, can raise
questions about accountability and control. This risk was faced with the involvement of
the stakeholders, namely the ‘working party of the Court of Justice’. This working party—
composed of representatives of EU member states—has a relevant say on the rules
concerning the Court of Justice, including the rules of procedure. The working party
followed the development of e-Curia in its various stages, and, after assessing the new
system, endorsed and approved its deployment. As a result, the Court authorized the use
of e-Curia to lodge and serve procedural documents through electronic means. Moreover,
the Court approved the conditions of use of e-Curia to establish the contractual terms and
conditions to be accepted by the system’s users. The decision established the procedures
to be followed to become a registered user, to have access to e-Curia, and to lodge
procedural documents. In this case, the loose coupling between law and technology
provided the context for a simpler technological development (Contini 2014).
Furthermore, it eases the capacity of the system to evolve and to adapt; the Court can
change the system architecture or take advantage of specific technological components
without having to change the underpinning legal framework.
The three cases discussed in this section highlight the complex and variegated practices
needed to develop and maintain effective techno-legal assemblages. Given the
heterogeneous nature of legal and technological configurations, it is not possible to
prescribe the actions required to effectively manage a given configuration. Moreover,
configurations evolve over time and require interventions to maintain effective techno-
legal assemblages and the procedures they enable. Shift and drifts are common events
that unfold in the deployment of techno-legal assemblages. These shifts and drifts should
not be considered as abnormal but rather as normal patterns that characterize the
successful deployment of e-justice configurations.
(p. 261)
Law and Technology in Civil Judicial Procedures
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7. Final Remarks
ICT systems, as well as legal systems, have regulative properties that shape the actions
and the outcomes of judicial proceedings. This chapter has examined how the two
regulative regimes are intertwined into heterogeneous techno-legal assemblages. By
recognizing the regulative regimes underpinning technical and legal deployment, and
their entanglements into techno-legal assemblages, it is possible to better anticipate the
effects that the digitalization of civil judicial procedures have on the delivery of judicial
services, as well as the institutional implications of ICT-driven judicial reforms.
This analysis of law and technology dynamics in civil proceedings complements the
established body of research, which highlights that institutional and organizational
contexts are important factors to be accounted for when the deployment of ICT systems
in the public sector is concerned (Bertot, Jaeger, and Grimes 2010). The imbrication of
formal regulations and technology, as well as the dynamics (of negotiation, mediation, or
conflict) between the two regulative regimes, offer a new dimension to account for the
digital transformation shaping the institutional settings and procedural frameworks of
judicial institutions. These changes are not just instances of applied law, but are also the
result of the transformation evolving into techno-legal assemblages. Procedural actions
are enabled by technological deployments that translate formal regulations into
standardized practices, governed, and mediated by ICT systems. Therefore, technologies
shape judicial institutions as they translate rules, regulations, norms, and the law into
functionally simplified logical structures—into the code of technology. At the same time,
technologies call for new regulations, which make the use of given technological
components within judicial proceedings legally compliant, and allow them to produce
expected outcomes. Both law and technology, as different regulative regimes engage
‘normativity’ but they constitute distinct modes of regulation, and operate in different
ways (Hildebrandt 2008). Technology is outcome-oriented: it either works, which is to say
that it produces expected outcomes, or it does not work (Weick 1990: 3–5; Lanzara 2014).
It is judged teleologically. A given e-filing application is good from a technological point of
view if it allows users to send online files to the court; that is to say, it allows the transfer
of bits and data. What works from a technological perspective does not necessarily
comply with the legal requirement to execute proceedings. Formal regulations are judged
deontologically: they separate the legal from the illegal, and as the examples show, what
works from a legal perspective may not work from a technological one. Finally, whatever
technologies the legal process relies upon, it must be judged teleologically for its effect,
and deontologically for its legitimacy (Kelsen 1967: 211–212; Contini and Mohr 2014: 58).
The complexity of techno-legal assemblages, which makes e-justice reforms a
high-risk endeavour, stems from the need to assemble and constantly reassemble these
two major regulative regimes. The imbrications between law and technology may
increase complexity, pushing the system development or its use to the point where a
threshold of maximum manageable complexity has to be considered (Lanzara 2014). This
is the case when the law prescribes the use of technological components that may
(p. 262)
(p. 263)
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become difficult to develop or use as in the Trial on Line or e-Barreau cases. However, as
the case of e-Curia demonstrates, even in demanding procedural settings, it is possible to
assemble techno-legal components that are effective from a technological point of view,
legitimate from a legal perspective, and simple to use. The management of these
scenarios, and the search for functional and legitimate solutions, is indeed the most
demanding challenge of contemporary ICT-enabled civil judicial proceedings.
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Notes:
(1.) This can be easily appreciated considering national and European e-Justice plans. See
Multiannual European e-Justice action plan 2014–2018 (2014/C 182/02), or the resources
made available by the National Center for State Courts, http://www.ncsc.org/Topics/
Technology/Technology-in-the-Courts/Resource-Guide.aspx accessed 25 January 2016.
(2.) See, for instance, the Resource Guide ‘Technology in the Courts’ made available by
the National Center for State Courts http://www.ncsc.org/Topics/Technology/Technology-
in-the-Courts/Resource-Guide.aspx accessed 25 January 2016.
(3.) The registered electronic mail is a specific email system in which a neutral third
party certifies the proper exchange of the messages between senders and receivers. For
the Italian legislation, it has the same legal status of the registered mail. Italian
Government, Decreto legislativo 7 marzo 2005 n. 82. Codice dell’amministrazione digitale
(Gazzetta Ufficiale n. 112 2005).
Francesco Contini
Francesco Contini, Consiglio, Nazionale delle Ricerche
Antonio Cordella
Antonio Cordella, London School of Economics
(p. 268)
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