The New New Courts

Abstract

In this Article we describe the phenomenon of online courts, which is fast gaining momentum, and analyze these “new new courts” from an access to justice perspective. We distinguish between two turning points in terms of access to justice and courts: the rise of alternative dispute resolution (ADR) (producing what we refer to as the “new courts”) and the spread of online dispute resolution (ODR) (giving rise to what we refer to as the “new new courts”). While both developments seem to be motivated by similar rationales and a desire to increase access to justice, the implications of adopting ADR and ODR are different. The benefits associated with institutionalizing ADR in terms of access to justice were perceived primarily in efficiency-related terms due to the assumption that an inherent trade-off exists between efficiency and fairness. This assumption is now being challenged through ODR in the context of the new new courts. Because of the qualities of the digital medium and internet communication, ODR could potentially increase both the efficiency and fairness of dispute resolution processes, formal and informal. At the same time, the new new courts, precisely because of their reliance on algorithms and data, present novel challenges to fairness and open the door to new sources of danger for disputants and the judicial system.