E-Nudging Justice: The Role of Digital Choice Architecture in Online Courts
37 Pages Posted: 10 Jul 2019 Last revised: 12 Aug 2019
Date Written: March 18, 2019
Justice systems around the world are launching online courts and tribunals in order to improve access to justice, especially for self-represented litigants (SRLs). Online courts are designed to handhold SRLs throughout the process and empower them to make procedural and substantive decisions. To that end, they present SRLs with streamlined and simplified procedures and employ a host of user interface design and user experience strategies (UI/UX). Focusing on these features, the article analyzes online courts as digital choice environments that shape SRLs’ decisions, inputs and actions, and considers their implications on access to justice, due process and the impartiality of courts. Accordingly, the article begins to close the knowledge gap regarding choice architecture in online legal proceedings.
Using examples from current online courts, the article considers how mechanisms such as choice overload, display, colorfulness, visual complexity, and personalization influence SRLs’ choices and actions. The analysis builds on research in cognitive psychology and behavioral economics that shows that subtle changes in the context in which decisions are made steer (nudge) people to choose a particular option or course of action. It is also informed by recent studies that capture the effect of digital choice architecture on users’ choices and behaviors in online settings. The discussion clarifies that seemingly naïve UI/UX features can strongly influence users of online courts, in a manner that may be at odds with their institutional commitment to impartiality and due process. Moreover, the article challenges the view that online court interfaces (and those of other online legal services, for that matter) should be designed to maximize navigability, intuitiveness and user-friendliness. It argues that these design attributes involve the risk of nudging SRLs to make uninformed, non-deliberate, and biased decisions, possibly infringing their autonomy and self-determination. Accordingly, the article suggests that choice architecture in online courts should aim to encourage reflective participation and informed decision-making. Specifically, its goal should be to improve SRLs’ ability to identify and consider options, and advance their own — inherently diverse — interests. In order to mitigate the abovementioned risks, the article proposes an initial evaluation framework, measures, and methodologies to support evidence-based and ethical choice architecture in online courts.
Keywords: courts, online courts, ODR, choice architecture, nudging, access to justice, self-represented litigants, litigants in person, UX, UI, decision-making
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