1 i Digital Justice ii iii Digital Justice Technology and the Internet of Disputes ETHAN KATSH ORNA RABINOVICH-E INY Foreword by Richard Susskind 1 Digital Justice. Ethan Katsh and Orna Rabinovich- Einy. © Ethan Katsh and Orna Rabinovich-Einy 2017. Published 2017 by Oxford University Press. iv 1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Ethan Katsh and Orna Rabinovich-Einy 2017 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging- in- Publication Data Names: Katsh, M. Ethan, author. | Rabinovich-Einy, Orna, author. Title: Digital justice : technology and the internet of disputes / Ethan Katsh and Orna Rabinovich-Einy ; foreword by Richard Susskind. Description: New York : Oxford University Press, 2017. | Includes bibliographical references and index. Identifiers: LCCN 2016051090 | ISBN 9780190464585 ((hardback) : alk. paper) | ISBN 9780190675677 ((pbk.) : alk. paper) Subjects: LCSH: Law—Data processing. | Information technology—Law and legislation. | Technology and law. | Internet—Law and legislation. | Computer networks—Law and legislation. | Torts. Classification: LCC K564.C6 .K38 2017 | DDC 347/.0902854678—dc23 LC record available at https://lccn.loc.gov/2016051090 9 8 7 6 5 4 3 2 1 Paperback printed by WebCom, Inc., Canada Hardback printed by Bridgeport National Bindery, Inc., United States of America Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. 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You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com. v To Bev To my parents, Efrat and Itamar Rabinovich vi vii CONTENTS Acknowledgments xi Foreword by Richard Susskind xiii Introduction 1 “CONFLICT AS A GROWTH INDUSTRY”: HOW MANY DISPUTES ARE THERE? 4 What Is New? 6 The Growth of Online Disputes 8 Proliferation of Disputes in the 1990s 10 The Blurring of Online- Offline Boundaries 11 WHY TRADITIONAL DISPUTE RESOLUTION DOESN’T WORK FOR THE DIGITAL ERA 14 ONLINE DISPUTE PREVENTION 17 PART I ■ ONLINE DISPUTE RESOLUTION AND ACCESS TO JUSTICE 1. Online Dispute Resolution and Prevention: CHAPTER A Historical Overview 25 THE HISTORY OF ONLINE DISPUTES 25 The Early Years 25 More Users, More Disputes 29 THE EVOLUTION OF THE FIELD OF ODR: FROM “ONLINE ADR” TO ODR 33 From Tools to Systems 34 ODR Systems Design: The Dispute Resolution and Prevention Triangle 37 viii viii Contents 2. Access to Digital Justice CHAPTER 39 ACCESS TO JUSTICE IN THE PRE- DIGITAL ERA 40 THE THREE WAVES OF THE ACCESS TO JUSTICE MOVEMENT 42 IMPROVING ACCESS TO JUSTICE THROUGH ODR 45 ONLINE DISPUTE RESOLUTION 46 ONLINE DISPUTE PREVENTION 51 PART II ■ BETWEEN DIGITAL INJUSTICE AND DIGITAL JUSTICE  3. E- commerce and the Internet of Money CHAPTER 57 THE ORIGINS OF E- COMMERCE DISPUTES 58 Resolving Disputes 62 Preventing Disputes 66 Another Story and Lesson 75 CONCLUSION 79  4. The Internet of On- Demand Healthcare CHAPTER 81 GENERATING DISPUTES 82 RESOLVING DISPUTES 97 PREVENTION OF MEDICAL ERRORS AND PREVENTION OF CONFLICT 103 CONCLUSION 107  5. The Challenge of Social and Anti- Social Media CHAPTER 109 INTRODUCTION 110 CONFLICT AS A GROWTH INDUSTRY 113 DISPUTE RESOLUTION AS A GROWTH INDUSTRY 116 CONFLICT PREVENTION 125 CONCLUSION 130  6. Labor and the Network of Work CHAPTER 131 TECHNOLOGY AND THE NEW WORKPLACE 133 GENERATION OF DIGITAL DISPUTES IN THE NEW WORKPLACE 136 DISPUTE RESOLUTION IN THE DIGITAL WORKPLACE 139 DISPUTE PREVENTION IN THE DIGITAL WORKPLACE 146 CONCLUSION 148 ix Contents ix  7. ODR in Courts and Other Public Institutions CHAPTER 149 GENERATING DISPUTES: NEW EXPECTATIONS BY CITIZENS, NEW OBLIGATIONS OF PUBLIC INSTITUTIONS 150 DISPUTE RESOLUTION BY PUBLIC INSTITUTIONS: A FOCUS ON COURTS 154 Technology as Case Management 155 E- government and Use of Technology by Courts 156 Technology as a Means for Transforming “Access to Justice” 156 ONLINE DISPUTE RESOLUTION IN COURTS 158 Early ODR Initiatives 158 Recent ODR Initiatives 159 DISPUTE PREVENTION BY COURTS AND PUBLIC INSTITUTIONS 165 CONCLUSION 167 Conclusion: The Present and Future of Digital Justice and the “Moving Frontier of Injustice” 171 LOOKING FORWARD 171 THE ROLE OF LAW AND COURTS 174 ADDRESSING THE DIGITAL JUSTICE GAP 177 Notes 181 Bibliography 219 Index 237