The Web has transformed how we gather, process and view information. Yet, the legal system has largely ignored the Web’s vast potential to settle legal issues. Just one possible way for the Web to improve the efficiency of legal determinations is through online surveys, which are cost efficient and quickly obtained.
Surveys are often used in intellectual property-related issues to empirically determine facts which are then interpreted to settle a question of law. For example, in trademark law, surveys are used to prove whether a competitor’s trademark is likely to cause consumer confusion. If it is, then the plaintiff is provided some sort of legal relief. All to often, each side offers their own surveys developed by their own experts to advance their claims.
So here is a thought experiment proposal; why not use online surveys to gather facts that can then beused to decide legal outcomes? Why not open up the survey questions to an online community to gather facts? I think doing this might make the system more efficient, speedy, and unbiased. It would also include interested public participants and show the public how the system works, and what their beliefs and survey responses mean from a legal standpoint. Including the public this way could enrich our legal system.
What are some of the problems that might arise from this system? An obvious one is that one side might try to influence responses. Technology might provide an answer through a secured response system. Another alternative is to limit the sampling to a closed user group. Better yet, a response similar to open platforms like Wikipedia might emerge. A completely open community of responders, who have some interest or stake in the legal question, would theoretically offer an accurate appraisal of the public’s view.
Another problem would arise in deciding who frames the questions. Whoever gets to define the scope of questions has a great amount of discretion.
In spite of these difficulties, which are likely surmountable, the question lingers: Why has our legal system failed to harness the Web for fact gathering? Is it falling too far behind the times? Is it too entrenched in its formal, text-based culture?
I’d love to hear your thoughts and reactions to this question.