When did the first fishmonger call out, “Fish for Sale! Fresh Off the Boat!” The obvious value of freshness is still captured by dockside sales and fish markets notable for the absence of smell—for truly fresh fish don’t smell fishy. In this example the ability to communicate the value of freshness is straightforward: an ad hoc cardboard sign by the roadside will do. Similar examples will occur to the foodies amongst us: fresh Baguettes in Paris, fresh cut flowers, etc.
There has been a gradual increase in transparency in Court systems over the past 20 years that merits both recognition and offers lessons in the various ways in which transparency and its natural effects can be dulled or entirely frustrated.
There are increases in transparency and reports like the State of the Criminal Justice System Dashboard published by the federal Department of Justice which publish some timeliness results.
One tricky problem is that controls on timeliness vary from system to system. Further, it has no constant value against which measurement is possible. Even the sensitivity of systems to failures in timeliness vary so that in some systems small differences are not tolerated and in others huge differences regularly go without notice.
A private business will seek to ensure timeliness in response to the signals it receives through changes in demand or service complaints. As transparency has increased in relation to consumer services purchasers effectively control the outside bounds of delay. The net effect of thousands of innovations gathered together over time can produce the global supply chain and the ability to order online with confidence the good will be delivered 3 business days later—virtually all the time. It is reported that Amazon still delivers earlier than its competitors despite –or perhaps because — of the huge number of deliveries it must manage. This is not a new problem: the value of truly fresh fish has been higher since people started catching and reselling fish.
Perhaps the best example in justice systems is the viral development of expedited arbitration rules across the world in response to user complaints about arbitral delay. A compliment to these measures is the dramatic increase in interim orders becoming readily available through special procedures or commitments to move speedily by the arbitral administrative center. Along with a greater assurance of subject-matter expertise these appear to have doomed the public court share of commercial disputes that can choose to go elsewhere.
Transparency enters the question when the feedback signals are blocked, distorted, or have no effect on the operator of the system. For there must be a signal and someone who cares about it, and has the ability to do something about it. In contrast to arbitral systems the Court system has its share of all three problems.
The long history of court delays has tended to focus on changes in capacity rather than productivity or efficiency. The recent complaints about shortfalls in judicial appointments are frequently married to comments about ongoing delays. Yet in that obvious example it is impossible to separate the signal from the noise. There must be some relationship between judicial numbers and timeliness, other things being equal. But other things are never equal. The relationship may also include some confounding factors: consider how rarely Courts have publicly dedicated increased judicial capacity to reducing backlogs. While the call for appointments is very frequently justified by reference to increasing delays there is little transparency as to how they might reduce delay and by how much. There are fundamental shortcomings in the measurement of demand for court services just as the information systems which could help have been applied almost everywhere else. Planes no longer fly half full, are chock a block with passengers due to the increased power of highly developed information system but similar measures still appear largely absent in the public court system. Similarly, there are fundamental shortcomings in the measurement of supply for court services –much less the management of that supply. Courts do not ‘supply’ Judges, or sitting days, or registry services: they supply high quality resolutions to private and public disputes. Ensuring they do so on a timely basis needs to be given a higher priority by everyone.
