07/14/2012 05:35 pm ET | Updated Sep 13, 2012

Are Courthouses Obsolete?

The courthouse functions as a public records repository, a place where some taxes are paid, registrations take place, legal notices are posted, public auctions such as foreclosures occur, licenses are issued, administrative offices are housed, and criminal and civil trials take place. Additionally, the courthouse area is a traditional public forum. Increasingly these functions are being moved online or to other locations.

More records and interactive governmental offices are digital. This trend will likely continue to a time when a physical location for these functions is unnecessary unless mandated by legislation. Electronic bulletin boards provide notices and this trend also will continue. Legislation could change the location of activities such as auctions and foreclosure sales. The virtual world provides numerous public forums.

Are courtrooms obsolete? No, but many venues are located outside of the traditional courthouse or are increasingly subject to video conferencing such as arraignments. Does the right of the accused to confront the witnesses against him require a face-to-face presence in the traditional courtroom? While a Supreme Court majority in 1988 held that a screen placed between the defendant and witnesses violated the Sixth Amendment's confrontation clause (Coy v. Iowa), in 1990 the Supreme Court, divided 5-4, indicated that a child's testimony via closed circuit television could be acceptable (Maryland v. Craig). This decision is one example of the legal system's willingness to explore electronic trial venues.

I am unaware of mandatory restrictions on the physical location of a criminal trial provided the defendant's constitutional rights are not violated and the public has access to the location. Many trials are viewed via a video link. A courtroom could easily be a store front if the relevant legislature so decided. Civil disputes are increasingly governed by arbitration clauses found in contracts and documents such as employment applications. Some commentators find arbitration troubling since there is no public forum subject to media coverage, legally binding precedents are not created, and confidentially agreements frequently prevent the dissemination of factual information that might be relevant in future claims. Those favoring arbitration point to greater speed in dispute resolution, less expense, and a less adversarial context so that relationships are more likely to be preserved. Attorneys representing employees and consumers as a generalization tend to favor jury trials over arbitration under the theory that jurors may empathize with the plaintiffs.

In 2012 the U.S. Supreme Court in a brief Per Curium decision found that the Federal Arbitration Act upheld an arbitration provision in West Virginia nursing home admission agreements that included claims for alleged breach of contract, fraud, negligence, gross negligence, and malpractice (Marmet Health Care Center Inc. v. Brown). The West Virginia Supreme Court of Appeals in a lengthy opinion had previously determined that such an agreement in advance of injury was contrary to West Virginia public policy. The only escape clause in the Federal Arbitration Act involves agreements that were entered into in a manner that would make them subject to revocation. Presumably this would include duress, undue influence, or lack of authority to sign the arbitration agreement.

The general trend is that the U.S. Supreme Court has consistently broadened the types of disputes that may be included in a mandatory arbitration agreement. While Congress could amend the Federal Arbitration Act, this does not appear likely. Consequently resolving civil disputes increasingly does not require a courthouse.

So are courthouses obsolete? Not yet, but if the present trends continue they may become so with digital records, non-judicial dispute resolution, and criminal trials held in alternative locations. What becomes of the courthouse square as a physical public forum? That will be our loss.