Nov
25
I Will See You in Court – Virtually!
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Apologies if you were anticipating another Donald Trump story . This note is a result of attending a long and utterly fascinating seminar entitled “ Online Courts :Perspectives from the Bench and the Bar “, Sponsored by Harvard Law School , featuring British and American judges and practisers , and including Richard Susskind , whose book on online courts in the UK has made such a stir , the event was a very timely review of how jurisdictions have handled the problems arising from no longer being able to conduct legal procedures in court in person . But it also had a much larger resonance . It spoke vividly of what society has to do in an emergency , then perceives as inevitable and soon begins to envisage as the next evolutionary developmental branch . If you want to test the ability of a society to change , and very quickly if necessary , putting the courts under a microscope is not a bad idea . They tend to be conservative , procedurally inflexible , and run by people who are not generally expected to be in the vanguard of progressive change . I came into this session fully armed with all the prejudices save one – previous experience as the CEO of the company that launched the very first UK built online legal retrieval service in the early 1980s had taught me that a proclivity to change is not an age related element amongst lawyers – the great Lord Denning , Master of the Rolls and chairman of my Advisory Council was in his mid 80s when he first went online and delighted in the technology !
As a test of the ability to change , and analyse what works as change takes place – this meeting was superb . Many participants felt that they had no option originally but to go online when the pandemic struck . Avoiding lengthy delays in getting justice , and trying to prevent huge backlogs mounting up , made prompt action vital . Courts in both countries quickly complied . It was soon obvious that while oral argument worked excellently for most practitioners , cross-examination was much more difficult . Other losses were noted – a loss of formality , “ majesty” , a loss of gravitas . On the other hand there were gains in speed , in simplification of procedures and the effectiveness of short arguments before a Judge . Cross examination could be held by witness and lawyers meeting in a recorded , socially distanced context , but this was difficult . Above all , I had a sense from the early exchanges that the emphasis in the expression “ dispute resolution“ had changed in the sense that the utility of the online court was less in laying out the dispute in all its gory detail , and concentrated more on the resolution side of things .
And then the participants began to peel back the inherent problems of the existing system . It was immensely expensive – and very time consuming . The courts were awash with paper. . Procedures had grown hugely complex , witnessed by procedural handbooks with thousands of pages , and clerks who functioned like expert systems trying to drive a way through them . The British had created a 2000 page user manual – the White Book – but arguably all the procedural certainty in the world did not protect court systems on both sides of the Atlantic from blocking up , suffering congestion that diminished the delivery of justice to those seeking it . And losing the point of justice through delays that reduce or eliminate the impact of judgements withheld too long .
By the time the full extent of the problems became clear , a speaker came to the platform offering a ray of bright hope that some senior judges understand both the legal issues and the impact of technology at a level that makes change possible . This was Sir Geoffrey Vos , currently Chancellor of the UK’s High Court . Sir Geoffrey is due to become Master of the Rolls, head of the civil courts, in January , and after this performance should get a warm welcome from all reform minded observers . From the beginning of his talk he clearly recognised that whatever the problems caused by lockdown and physical court closures , opportunities for change and learning were being created and it would be wholly wrong to return to the old systems without change . Indeed he thought it might be impossible to do so . It was time to recognise that we were living in an age of borderless agreements , as represented by technologies like blockchain and “smart contracts” . Digital justice , he re-emphasised , should be about the resolution , not the dispute . The world was now full of dispute resolution services where plaintiffs represented themselves , and trusted an outcome based on finding a mediated answer , not on deciding who is “right” . He speculated that from eBay onwards , AI-based dispute resolution is currently providing answers to some 60m cases a year . More civil courts might be dedicated to arbitration and mediation , and less to presentational theatre .
Richard Susskind, summing up , commented that online courts gave an opportunity to restart the procedural clock , forming very general principles of procedural conduct , and allowing greater flexibility . We also heard commentary that related back to the issues of cross examination online . Despite the importance attached to it . Studies had shown how poor most of us are at guessing who is telling the truth- humans , and judges and juries proved no better than the rest of us , got it right about 50-54% of the time . AI might help improve that ( or we could just toss a coin? ) Richard suggested recording the hearing and then replaying it to a jury as a way of getting a better grip on what is happening and giving jurors more time to think , pause , ask questions .
This was an impressive meeting . The determination of professionals to learn from online court experiences forced upon them by the pandemic and to apply the lessons to making the delivery of justice more effective as a system and more useful for recipients was refreshing , and if justice systems can rethink then so can many other procedurally sclerotic elements of our society .
For more on this topic go to www,remotecourts.org
Oct
7
The Scramble for Institutions
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We are a bitchy business, scholarly publishing and communications. Our commentaries are darkened by the worst aspects of gossipy innuendo by librarians, publishing’s love of intrigue and tales of competitive failure, and the joys of academic backbiting. I have had fifty years in the company of many people who do not recognise innovation, have no capacity to praise achievement, and who cannot recognise progress unless it is a circular route that takes them back, to where their own careers began – when of course everything in the scholarly marketplace was rosy.
The latest piece in The Geyser, on PLoS and the CAP funding programme, is quite typical, but not the only one. PLoS is a not for profit, and one of the first Open Access publishers. It is run by Alison Mudditt, a distinguished scholarly publisher with a proven track record of success in commercial academic publishing. In the last two years she has brought PLoS out of serious losses and back into balance again. She has created a strong management team and they have produced a new way of engaging with research institutions that moves beyond the bundling and discounting of “transformative agreements” and into an era of much longer term partnership agreements, where margins are predictable, where issues of volume and cost can be transparent and where institutional buyers can be certain that if they overspend in one year they will be compensated in another. This calls for levels of transparency in partnership that would make many commercial players expire in anguish.
This is new. It is not complex. It is innovative in its rebalancing of the institution-publisher relationship. It is highly relevant to an industry largely created out of public money. It speaks of the sort of social capitalism that is reflected in Europe by developments like Plan S. Surely our first reactions should be to praise its authors, recognise their intelligent innovation and celebrate their attempt to provide a better solution? Criticism can then follow, and undoubtedly the scheme will change as it rolls out. Meanwhile, congratulations PLoS, welcome back to financial health and thanks for showing us that there is always something new we can do with business models.
Then we need to reflect on what this does to the market. More and more emphasis is now being placed on institutional deals, and many publishers are becoming acutely aware that there are real limitations on numbers here. The focus is on the US market, and PLoS is launching in the medical and biological science spaces. Are we going to see a struggle for institutional adoptions – a sort of musical chairs until the deal-making music stops? Indeed, a Scramble for institutions that mirrors the nineteenth century Scramble for Africa as European nations colonised a continent. And it is worth reflecting on this because the only way of determining the value of commercial OA, apart of course from its margins, will be the value, period, and potential yield of its institutional agreements.
And this introduces thoughts about whether it is better in OA to be specialised or generalised. If you are trying to win a Sloan Kettering or a Francis Crick institute then specialisation is essential. But many university deals cannot be closed without broad subject coverage. And it will be interesting to see the effects of all of this on reputation management. How do we sell the university managers focussed on research team promotion at a time when funding is tightening that publication in a limited range of journals helps them? Only if we can map the subsequent life of the article post-publication far more effectively by showing who read it, who commented, who passed it on, and how influential it subsequently became. While the historic measure has been the Impact Factor, the limitations of citation indexing and the gaming of citations make it at once the only common measure, and a a challenge for OA publishers to create independent ways of demonstrating that the article reached the right key people and teams, and that they reacted to it. The data is now generally available: it is now up to publishers to demonstrate how effectively they are connecting communication with recipients.
Lastly in this context, we need to bring funders into focus. To avoid accusations of double-dipping and to ensure continuity and robustness, it will be critical in some instances to bring funders into some of these partnerships. And a three way deal between a funder, a research institute and a servicing OA publisher does make a great deal of sense, especially if it can be done as openly as the PLoS CAP model suggests. The end result may well be consolidation amongst OA players, and with at least one commercial player up for sale at present this seems to be in train already. The days when the barriers to entry in publishing were notoriously low may be coming to an end. The Scramble for institutions reminds us that OA publishing is a function of a digital services and solutions economy. Perhaps it would never have run satisfactorily if based solely on a volume-reliant APC-based model. We should thank PLoS for leading us in new directions.
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