Immigration Article of the Day: Remote Adjudication in Immigration by Ingrid V. Eagly
Remote Adjudication in Immigration by Ingrid V. Eagly, UCLA School of LawUniversity of Oxford – Border Criminologies March 19, 2015 Northwestern University Law Review, Vol. 109, No. 4, 2015, Forthcoming UCLA School of Law Research Paper No. 15-09
Abstract: Increased reliance on televideo technology is a central challenge to the legitimacy of modern courts. Supporters view televised adjudication as an essential tool that has no negative effect on judicial decisionmaking, whereas critics urge that it unfairly biases judges against litigants who must pursue claims over a television screen. What has gone unnoticed in this judge-focused discourse is the potential for remote adjudication to discourage litigant participation in the adversarial process. This Article is the first large-scale, empirical analysis of the consequences of televideo on judges, lawyers, and litigants in immigration cases. Based on a natural experiment with televideo adjudication in the federal immigration courts, it reveals an outcome paradox: detained televideo litigants are more likely than detained in-person litigants to be deported, but not because judges unfairly disadvantage televideo cases at trial. Instead, these inferior results occur because detained litigants assigned to televideo courts exhibit depressed engagement with the adversarial process — they are less likely to retain counsel, to apply to remain lawfully in the United States, or to seek an immigration benefit known as voluntary departure.
Drawing on interviews of stakeholders and court observations from the highest-volume detained immigration courts in the country, this Article advances several explanations for why televideo litigants are less likely than other litigants to take advantage of procedures that could help them. These include: (1) litigants’ perception that televideo is unfair and illegitimate; (2) technical challenges in litigating claims over a television screen; and (3) the literal barrier that remote adjudication places between the immigrant respondent and other courtroom actors. These findings invite reexamination of the conventional judge-focused theories about remote adjudication and begin an important conversation about technology’s threat to meaningful litigant participation in the adversarial process.
KJ