A2J/A2K: Access to Justice, Access to Knowledge, and Economic Inequalities in Open Courts and Arbitrations
78 Pages Posted: 22 Feb 2018 Last revised: 19 Apr 2018
Date Written: February 15, 2018
This article, for a symposium on Secrecy, explores a broad set of processes that makes dispute resolution inaccessible. My focus is on the problem of institutional privatization, as contrasted with questions of individuals’ personal privacy. The kind of secrecy I discuss here has several sources including the promotion of alternative dispute resolution (“ADR”) through in-chambers judicial management and settlement efforts; the design of some online dispute resolution (“ODR”) and court-annexed arbitration programs; mandates to outsource dispute resolution to private providers; bans on pursuing relief through class actions; and the costs to individuals of pursuing claims.
Rather than any “natural” states of open or closed dispute resolution, political and social movements shape laws endowing courts, ADR, ODR, and arbitration with their attributes. Today, we assume courts to be open and think of judicial management and of arbitration as closed. These assumptions are the product of rules, doctrine, and practices that are in motion. As I detail, much of what takes place in courts increasingly happens outside the public purview, and yet some judges do pre-trial work in open court, on the bench and on the record. Likewise, while privately provided arbitrations are generally cloistered, some jurisdictions permit public access to court-annexed arbitration. A distinction therefore needs to be drawn between what I call the doctrinal openness of courts, familiar because of layers of custom, practice, rules, and law formally committed to public access, and the functional privatization of court-based activities and of some forms of arbitration that make interactions and outcomes inaccessible.
I discuss how the closing off of ADR and ODR interacts with bans on class actions, confidentiality clauses, and a host of “legal financial obligations” (“LFOs”), all of which make dispute resolution inaccessible and aspects of it secret. I add to the documentation on the use of arbitration by mining publicly available databases that reflect how unusual single-file consumer claims are. To the extent ODR creates new routes to redress, the versions practiced in the United States have not built in third-party access to welcome observers or to enable assessment of its processes or outcomes. The pressures on courts to finance their own services are another way in which access is limited; a host of assessments deter litigants from using courts.
This article then turns to the need to reframe constitutional doctrine so as to constrain the functional privatization of dispute resolution. Current approaches rely on the tradition of access to trials as the benchmark. Given the rarity of trials, preserving public practices requires revising the legal inquiries to focus on the utilities of open dispute resolution as it now takes place, whether in person or through exchanges of materials online. I close with the reminder that making courts accessible is in the interests of individual and repeat players.
Keywords: class action, aggregation, alternative dispute resolution, online dispute resolution, privatization, publicity, Bentham, repeat player, one shot player
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