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Amnon Reichman, Yair Sagy, Shlomi Balaban, From a Panacea to a Panopticon: The Use and Misuse of Technology in the Regulation of Judges, 71 Hastings L. J. 589 (2020).

Court systems are large, complex, diverse, and resource-dependent organizations, a condition that shapes their character and behavior. It is surprising, then, how often court leaders fail to account for the organizational perspective in their decisionmaking. Amnon Reichman, Yair Sagy, and Shlomi Balaban illustrate this phenomenon, showing how the visionaries behind Legal-Net, Israel’s cloud-based judicial management system, were plagued by their failure to place its development in a broader organizational context.

Reichman and his colleagues trace the Israeli courts’ development of Legal-Net over two decades. Their research reveals a court system brimming with confidence that technology could be used to regulate judicial behavior, but insufficiently appreciative of the challenges of technological integration. The first version of Legal-Net was a flop: complicated and ambitious, it was a poor fit with existing court culture. A subsequent version better accounted for the court system’s unique character, but court leaders failed to anticipate how significantly its implementation would affect that character. In fact, the authors explain, the introduction of Legal-Net “heralded a tectonic shift in the judiciary’s work culture and work patterns,” as judges tailored their behavior toward the system’s incentives and away from their traditional roles. Today, it seems, the Israeli courts work for Legal-Net as much as Legal-Net works for them.

Legal-Net’s history begins in the early 1990s, when a handful of determined court administrators and judges began dreaming of a centralized and fully digitized judicial management system on a national scale. They imagined a “command and control” system that would rigidly structure and manage judicial performance by dictating how and when legal issues would be resolved. The system would structure the judicial process, telling judges which matters to address next in light of their existing caseload. This approach was compatible with Israel’s general “faith in technology as the bridge to a brighter and better future,” but wholly incompatible with reality on the ground. The proposal faced significant pushback from trial judges as well as insurmountable technical challenges, and it was abandoned after failing to attract a single viable development bid.

The failure of this first effort made clear the need to come at the problem from a broader organizational perspective. That meant responding to both the demands of the external environment and the needs of the court system’s internal stakeholders. To their credit, judicial leaders were up to the task. Looking outward, they contemplated how Legal-Net could ease—or hinder—the court system’s relationship with its external resource providers. One subtle but important example was Chief Justice Aharon Barak’s insistence in 2003 that Legal-Net be designed in accordance with the values of transparency and accountability. These values were central to Barak’s own beliefs about the judicial role in a liberal democracy, and embracing them in such a public way bolstered the court system’s resource acquisition strategy. If the courts presented themselves as open, transparent, and constructively self-critical, they would more likely be seen as legitimate and worthy of public support and financing.

Legal-Net’s proponents also turned their gaze inward. Their earlier failure taught them that they could not implement a significant technological change without buy-in from rank-and-file judges. They rescinded their demands for a top-down control system and reimagined the technology “as an integrative platform, where management pursues organizational goals, related to establishing a sense of shared mission and common practices of communication about such a mission.” This “managerial-integrative” approach eventually gained wider internal acceptance, and by the mid-2000s a new version of Legal-Net was ready for launch.

The new system allowed court administrators to create and disseminate statistical reports covering a wide range of judicial activity, including fine-grained comparative analyses of how individual judges managed their dockets. Court leaders viewed these reports as advancing system-wide transparency and accountability without compromising judicial independence. Judges would not be forced to decide cases in a certain way or within a certain timeframe, but they could be nudged toward efficiency “by way of harnessing judicial reputation.” The hope, in other words, was that judges would continue to address each individual matter with due care, but would also expedite the entire docket more efficiently than before.

But Legal-Net’s implementation provided a sharp reminder that organizations (like living organisms) are adaptive and will adjust their behavior to handle new environmental conditions. Once the reporting software was in place, Israeli judges felt pressure to resolve all their open matters quickly, even when individual issues might warrant extra time or attention. The result was greater case management efficiency, but also—in the authors’ view—a full-fledged reconfiguration of the judicial role. Reichman and colleagues explain that the arrival of Legal-Net epitomized “a transformation from a consciousness of retail, where the judicial attention was supposed to be fully devoted to the quality of resolution of individual cases, to an attitude of wholesale, where the judicial business is contextualized as a manufacturing process that is evaluated for its overall success in applying the law to a large number of cases as smoothly as possible.”

The lessons of the Legal-Net saga redound to court systems worldwide. The push for efficiency is familiar to American courts, which have increasingly turned to statistical reporting and managerial-judging techniques over the past half-century. As Israel’s experience shows, judicial efficiency can be an agreed-upon virtue yet pose delicate and difficult challenges in implementation. Separately, Legal-Net’s origin story is a valuable reminder that the process of organizational change and the effect of organizational change, while related, have different dimensions. To succeed, court systems (no less than other organizations) must structure their planning processes to account both for the current needs of their constituencies and for the unintended effects that transitions often bring.

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Cite as: Jordan Singer, The Machinery of Justice, JOTWELL (July 28, 2020) (reviewing Amnon Reichman, Yair Sagy, Shlomi Balaban, From a Panacea to a Panopticon: The Use and Misuse of Technology in the Regulation of Judges, 71 Hastings L. J. 589 (2020)), https://courtslaw.jotwell.com/the-machinery-of-justice/.