Digitalising law and the courts on a faster clock fits the infrastructure edge helping to create an ‘Asian century’

'asia century' - two books and opinions -
Justifications for The Rise and Decline of the Asian Century: False Starts on the Path to the Global Millennium, published in 1998, have been eclipsed by developments supporting The Future is Asian, launched this month

In the panic over the infamous Y2K or millennium bug two decades ago, poorly paid Indian computer coders became the outsourcing miracle that staved off chaos as they toiled to correct the software error that had made the world’s computers incapable of shifting into the dates of a new millennium. Because their work resembled dull clerical labour, few in the West — even among the highly-educated and well-travelled — understood the implications of this labour pool’s existence. They could not see that it was only the unimpressive (if mission-critical) end of far deeper technological expertise and potential. It was impossible to convince them that India would ever be capable of much more than providing hives of software coolies — even though Bill Gates, still at Microsoft’s helm at the time, said that it would be extremely difficult to run his company without its Chinese and Indian software engineers.

Twenty years later, Microsoft and Google are being run by chief executives born in India and mostly educated there.

There remain sceptics who refuse to acknowledge that Asia could soon be more than a match for the U.S. and other leading Western nations in virtually all the most significant technologies. It is hard to see how they can explain away — for instance — this passage in ‘China gains the upper hand over Germany,’ a report by Wolfgang Münchau published in The Financial Times on 3 March:

The two countries do have a lot in common. [ … ] But Germany’s economic strategy is not nearly as consistent. The German political preference is to reduce public debt. Yet the country’s biggest problem is falling behind in the technological race. Excessive fiscal consolidation has been the main cause of under-investment in roads, telecoms networks, and other new technologies.

What he says there fits what frequent intercontinental flyers have been remarking on for at least fifteen years — that Asia has been overtaking the West in updating infrastructure, especially airports and roads, even if large segments of the Chinese and Indian populations continue to live in primitive housing and can lack facilities as basic as toilets. Technological progress and modernising infrastructure are apparently part of the same feedback loop, as much a fact of life in those countries as dire poverty.

This paradoxical reality accounts for the experts’ inability to agree on whether or not the world is on the brink of a so-called ‘Asian century’ — in which the continent on which India and China coexist replaces the West as the world’s economic powerhouse, on its way to military and cultural dominance. If the facts truly support a headline in the same newspaper last week — ‘The Asian century is about to begin’  — the future tense will soon no longer serve for discussions of this topic. A London School of Economics conference on it at the start of this month was timed to coincide with the launch of The Future is Asian, a book by an Indian-American public intellectual, Parag Khanna. The counter-arguments in older books, such as The Rise and Decline of the Asian Century: False Starts on the Path to the Global Millennium, published in 1998, have been eclipsed by strong, recent economic trends.

What does any of that have to do with this web site’s focus on translating the digital revolution into the redesign of the legal system and courts? Just this: it cannot be a mere coincidence that here, too, the leaders are the Asian giants, China and India, and not the West — with the notable exception of Britain, in spite the monumental distractions of Brexit. 

A country’s legal system is crucial in the social counterpart of the physical infrastructure that holds it together.

Monitoring and delving into the progress of the litigation revolution across the world was never the purpose of this site. Through a single, fully substantiated case study, COTIN is intended to demonstrate how genuinely open or ‘transparent’ legal proceedings accessible by anyone would almost certainly have made the lamentable markers of this case inconceivable — a judge wholly unqualified and struggling, by her own admission, to adjudicate in a branch of law in which she had no experience whatsoever, in a trial skewed blatantly for the benefit of a colleague on the bench.

Questions about whether and when digital communication and broadcasting would be deployed by courts in California and the rest of America to achieve that transparency have led to discovering that they are laggards in this transformation. Entries on this site about courts at the forefront of change — in faraway countries — are based on woefully incomplete information, but they should encourage American media with the large long-distance travel budgets that this subject deserves to fill in the blanks. They include:

As another year closes, U.S.-invented technology is helping courts worldwide to realise a dream of live-streamed justice — streaking ahead of their change-resistant American counterparts

Is China leading the world in developing cyber-courts conducting trials online?

Who or what is making it harder to find news about performance-vetting and disciplining of California judges in Google — and why might this dismay Justice Breyer of the US Supreme Court?

Rich America is still the bizarre laggard in the — anti-inequality — litigation revolution. Should this be on 2020 presidential campaign posters? — post-Gutenberg

… Surely it’s time for an American presidential candidate from either party to run on bringing U.S. law and the courts into the 21st century? Start a campaign for yoking digital technology to putting justice within the reach of the poor and comparatively powerless? That there has been no such initiative, no parallel in […]

via Rich America is still the most bizarre laggard in the — anti-inequality — litigation revolution. Should this be on 2020 presidential campaign posters?  — post-Gutenberg

As another year closes, U.S.-invented technology is helping courts worldwide to realise a dream of live-streamed justice — streaking ahead of their change-resistant American counterparts


+000 Headlines live streaming court proceedings Times of India and Australian Financial Review
Press and reader attention to the debate on live-streaming of trials from courts at various levels, or its commencement  — above, left: The Australian Financial Review, 12 October 2017; right: The Times of India, 26 September 2018. Below: comment from a reader of that report from India (scroll to the end to read other selections); and The Guardian, 24 August 2018

3 Reader comment Times of India 26 September 2018

001 Headline, cameras in court, The Guardian,

In his 1987 magnum opus The Fatal ShoreRobert Hughes sketches the early days of his country’s legal system — in which prisoners of the state served time as farm workers in ‘the continental prison that was Australia.’ When they were abused by their masters, they had to go to court for help. In the 1800s, ‘[d]istrict benches close to Sydney were apt to treat convicts fairly and well, partly because their magistrates were more in the public eye.’ Where there was less transparency or none, justice was a scarce commodity: ‘[T]he further outback a farm was, the more opportunity it held for tyranny and the more likelihood there was of collusion between settlers and magistrates.’

Outside museums, no ordinary visitor to the land Down Under can detect any trace of its convict-society past. But today’s Australians are as eager as people on every continent to see how transparency through live-streamed court proceedings can sanitise their justice system. Whether from experiences as plaintiffs, defendants or court insiders, from civil or criminal trials, there is no shortage of witnesses capable of testifying in jurisdictions almost anywhere in the world that versions of this account from settler-era Australia quoted by Hughes are still playing out — far removed from public oversight:

One magistrate will bring his men to be tried before a neighbour magistrate, and it is a frequent practice for the master to pay a private visit to the magistrate, and say he is going to bring such a man or men before him, and wishes that such or such particular punishment may be dealt out. On the arrival of the men … the magistrate enquires what they have to say in answer to this charge, and frequently […] interrupts them, saying “I will not believe a word you have to say, and I shall sentence you to receive so many lashes.”

‘We are all pushing on this boulder,’ read the message of encouragement from a fellow-campaigner for exposing injustice in California, reacting to last month’s entry on COTIN. The boulder is the resistance of too many American courts, including the very highest one, to streaming trials on the internet in real time — an evolutionary jump in which the golden state famous as a crucible of innovation and for pioneering social legislation is trailing other states at a lackadaisical pace. This is not because courts in California work too well to warrant close, daily public scrutiny. Rankings of judicial accountability by state, published by the Center for Public Integrity in 2015, point to the opposite conclusion. The blog of the California Supreme Court noted:

In the CPI’s just-published report on California, the state judiciary received an F grade. This is a significant drop from the C-minus California received in 2012, the last time the CPI evaluated the state.

Yet Media Law Monitor recorded in 2016 that ‘[w]ith its new live-streaming video,’ California’s Supreme Court became merely ‘the 35th state court of last resort to provide live or near-live online video access to its proceedings’  — at about the same time as Alaska, Michigan, South Carolina and Delaware.

In a parallel that seems just as unlikely, given America’s status as the most influential digital technology pioneer, the U.S. is being overtaken by most countries whose legal systems have their roots in the English common law tradition — a group that includes India, despite its economic disadvantages and sprawling and unwieldy network of courts serving a population three times larger. Writing for The Guardian in August about Britain — whose Supreme Court went live on the net in 2011, and Court of Appeal made its maiden appearance on YouTube last month — the eminent London barrister Geoffrey Robertson said, in welcoming the prospect of television cameras in lower courts, 

Barristers frequently wish they could include as a ground of appeal an objection to a trial judge’s prejudicial tone of voice or body language – prejudice which is not apparent from reading a trial transcript. […]

There will always be claims of privacy, but trials are public occasions. […] My own experience in proceedings in other countries has been that televising trials means that the barristers are better prepared, the judges better behaved, and the public better informed.

If any U.S. lawyer of comparable seniority or any high-ranking judge has expressed similar sentiments in public, they have gone strikingly unreported. There have been very few reports of the legal profession recommending or cheering for truly open court proceedings, viewable live and online, in U.S. newspapers — in startling contrast to other common law countries. 

Assisted unwittingly by an uniformed public, and by politicians who have failed to make this an election issue, the U.S. Supreme Court has dug in its heels about rejecting live streaming. This explains why federal courts and several of  their state counterparts continue to hold out against the admission of disinfecting sunlight into their deliberations. In late 2017, Ars Technica reported: 

The Supreme Court is setting aside a request to live stream its oral arguments. The attorney for Chief Justice John Roberts Jr. told members of Congress that live streaming even the audio portion of its oral arguments might impact the outcome. […]

“I am sure you are … familiar with the Justices’ concerns [ that ] the live broadcast or streaming of oral arguments … could adversely affect the character and quality of the dialogue between the attorneys and Justices. Consequently, the Court is unable to accommodate your request.” 

Cross-national comparisons on this topic suggest a consensus about the need for transparency being most acute in courts at the local level, close to the human dramas in which rights are being asserted — rather than in appellate courts, where justices debate airy, often arcane, legal abstractions. This is evident in, for instance, readers’ comments (see screen shots below) on a Times of India story in September titled ‘People can watch courtroom drama live, SC allows live-streaming of court proceedings — which, with minor adjustments for place, could easily have been made on behalf of millions in other countries where courts are making this transition.

A legal system functioning honestly and correctly is the proof of a civilised society. But as taxpayers grow less and less confident that it is doing so, serving their needs, that foundation becomes progressively more unstable. Before any repair work can be done, they need to be able to see exactly what in happening in the courts. Transparency, followed by resolute, persistent corrective action. Simply and eloquently, in the same chapter of The Fatal Shore quoted at the start of this entry, Hughes states a profound truth:

Rights emerge by bargaining between the powerful and the relatively powerless; they are not simply granted, for if they were, there would be none. … Rights are solidified claims, sanctioned by use and expectation.

1 Reader comment Times of India 26 September 2018

2 Reader comment Times of India 26 September 2018

4 Reader comment Times of India 26 September 2018

5 Reader comment Times of India 26 September 2018

6 Reader comment Times of India 26 September 2018
Above: Readers’ comments in The Times of India  on 26 September 2018 about the announcement of live-streamed hearings for India’s Supreme Court