Technology, Ethics and Access to Justice: Should an Algorithm Be Deciding Your Case?

40 Pages Posted: 12 Aug 2013 Last revised: 13 Nov 2014

See all articles by Anjanette Raymond

Anjanette Raymond

Indiana University - Kelley School of Business - Department of Business Law; Queen Mary University of London, School of Law; Indiana University Maurer School of Law

Scott Shackelford

Indiana University - Kelley School of Business - Department of Business Law; Harvard Kennedy School Belfer Center for Science & International Affairs; Center for Applied Cybersecurity Research; Stanford Center for Internet and Society; Stanford Law School

Date Written: August 12, 2013

Abstract

Alternative dispute resolution (ADR) systems are becoming a mainstay of legal systems around the world, especially within systems of justice suffering from significant backlogs and delay. While arbitration used to be the bastion of most commercial law disputes, today mediation is more widely used in both public and private justice systems. The growth of mediation has prompted some to consider the possibility of the wider use of online dispute resolution (ODR) platforms. However, ADR is a newer mechanism for providing justice. Because many ADR systems are in fact reducing case backlogs, the focus has been on the speed of resolution and not necessarily on procedural protections and providing justice. This occurrence demands that these systems not merely be replicated. As ADR moves online, lessons must be learned from prior implementations that ensure continued vigilance to protect essential procedural protections.

In a manner similar to ADR at its inception, ODR providers often lack appropriate funding and procedural safeguards. One means address the former by reducing cost is to automate portions of the system. In fact, some argue that significant cost saving could be realized – and justice may be better served – by removing human neutrals from the equation; in other words, to fully automate justice. As ADR gains wider use, many commentators hypothesize the next generation of ADR will be an ODR platform, which will use an algorithm and possess no neutral human decision maker. Assuming this is true, (artificial intelligence dispute resolution systems already exists that not only use an algorithm, but learn from prior actors) then we must begin to ask, should a private provider of ODR be permitted to use an algorithm to dispense justice? What public policy and ethical issues demand consideration?

This Article seeks to respond to these issues, by: (1) exploring current needs in terms of improving access to justice; (2) analyzing existing systems that use online platforms to facilitate dispute resolution; (3) using case examples to highlight the potential for the widening use of ODR; (4) considering if these systems contribute to an increase in access to justice in low-value disputes; and (5) suggesting potential pitfalls that may arise if ODR is not regulated in a manner that ensures fair and impartial systems. Ultimately, we argue that an effective and ethical ODR platform requires the use of algorithms to settle the more common disputes, but that due process protections are required to help ensure against bias and improves access to justice.

Suggested Citation

Raymond, Anjanette and Shackelford, Scott J., Technology, Ethics and Access to Justice: Should an Algorithm Be Deciding Your Case? (August 12, 2013). Michigan Journal of International Law, Vol. 35, No. XX, 2014; Kelley School of Business Research Paper No. 2014-42. Available at SSRN: https://ssrn.com/abstract=2309052 or http://dx.doi.org/10.2139/ssrn.2309052

Anjanette Raymond (Contact Author)

Indiana University - Kelley School of Business - Department of Business Law ( email )

Bloomington, IN 47405
United States

Queen Mary University of London, School of Law ( email )

67-69 Lincoln’s Inn Fields
London, WC2A 3JB
United Kingdom

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

Scott J. Shackelford

Indiana University - Kelley School of Business - Department of Business Law ( email )

Bloomington, IN 47405
United States

Harvard Kennedy School Belfer Center for Science & International Affairs ( email )

79 JFK Street
Cambridge, MA 02138
United States

Center for Applied Cybersecurity Research ( email )

Wylie Hall 105
100 South Woodlawn
Bloomington, IN 47405
United States

Stanford Center for Internet and Society ( email )

Palo Alto, CA
United States

Stanford Law School ( email )

Stanford, CA 94305
United States

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