Online dispute resolution and the end of adversarial justice?

Description

Although proponents of online dispute resolution systems proclaim that their innovations will expand access to justice for so-called “simple cases,” evidence of how the technology actually operates and who is benefitting from it demonstrates just the opposite. Resolution of some disputes may be more expeditious and user interface more intuitive.  But in order to achieve this, parties generally do not receive meaningful information about their rights and defenses.  The opacity of the technology (ODR code is not public and unlike court appearance its proceedings are private) means that due process defects and systemic biases are difficult to identify and address.  Worse still, the “simple cases” argument for ODR assumes that the dollar value of a dispute is a reasonable proxy for its complexity and significance to the parties.  This assumption is contradicted by well established research on procedural justice. Moreover, recent empirical studies show that low money value cases, which dominate state court dockets, are for the most part debt collection proceedings brought by well-represented private creditors or public creditors (including courts themselves, which increasingly depend on fines and fees for their operating  budget).  Defendants in these proceedings are overwhelmingly unrepresented individuals.  What ODR offers in these settings is not access to justice for ordinary people, but rather a powerful accelerated collection and compliance technology for private creditors and the state.  

This chapter examines the design features of ODR and connects them to the ideology of tech evangelism that drives deregulation and market capture, the aspirations of the alternative dispute resolution movement, and hostility to the adversary system that has made strange bedfellows of traditional proponents of access to justice and tech profiteers.  The chapter closes with an analysis of front-end standards for courts and bar regulators to consider to ensure that technology marketed in the name of access to justice actually serves the legal needs of ordinary people.

About the speaker

Norman W. Spaulding is Sweitzer Professor of Law at Stanford Law School. His scholarship examines the history and ethics of the adversary system, procedural justice, and the effects of artificial intelligence and other technologies on the administration of justice. See Is Human Judgement Necessary? Artificial Intelligence, Algorithmic Governance, and the Law, in Dubber et al., The Oxford Handbook of Ethics and AI (2020).

About this conference

The conference takes place in Room K031 (Sciences Po, 1 Place St. Thomas d'Aquin, building M, 75007 Paris) - In person.