Issacharoff & McKenzie on Managerialism and its Discontents

Samuel Issacharoff (NYU Law) and Troy A. McKenzie (same) have posted “Managerialism and its Discontents”
(Review of Litigation, Fall 2023) on SSRN. Here is the abstract:

Managerialism has rooted itself in the American system of civil litigation in the 40 years since the amendment of Rule 16 to recognize a new form of judicial authority, and since Judith Resnik gave the phenomenon the name that serves as its shorthand moniker. Time has not perfectly tamed the inherent tensions between the mantle judges had to adopt in the face of increasingly complex, high-stakes, and multi-jurisdictional disputes and their traditional role as detached adjudicators. One ready manifestation of that tension is the back-and-forth between fixed and discretionary practices in federal courts. This essay examines the gyrations between formal rules of application and those understood to be contextual, and it presents three approaches to the familiar rules/standard divide in federal procedure: formal managerialism, algorithmic managerialism, and structural managerialism. The first is readily exemplified by reforms to social security cases, which received a carve-out from the Federal Rules of Civil Procedure in 2022 and a set of formal rules tailored to their unique issues. Algorithmic managerialism hopes to harness the growing power of Artificial Intelligence to craft custom sets of discovery, motion, and other practice rules at the outset of litigation to maximize judicial economy. Lastly, structural managerialism addresses how courts choose the most efficient fora, from multidistrict litigation to bankruptcy, for resolving polycentric disputes, most notably mass torts. We conclude our review of these trends with a simple reflection: Managerialism is not just an established feature of federal judicial practice, but a new expansion may be on the horizon.

Gunkel on Should Robots Have Standing

David J. Gunkel (Northern Illinois University) has posted “Should Robots Have Standing? From Robot Rights to Robot Rites” (Frontiers of Artificial Intelligence and Applications, IOS Press forthcoming) on SSRN. Here is the abstract:

“Robot” designates something that does not quite fit the standard way of organizing beings into the mutually exclusive categories of “person” or “thing.” The figure of the robot interrupts this fundamental organizing schema, resisting efforts at both reification and personification. Consequently, what is seen reflected in the face or faceplate of the robot is the fact that the existing moral and legal ontology—the way that we make sense of and organize our world—is already broken or at least straining against its own limitations. What is needed in response to this problem is a significantly reformulated moral and legal ontology that can scale to the unique challenges of the 21st century and beyond.

Stern et al. on Artificial Intelligence in the Chinese Courts

Rachel E. Stern (University of California, Berkeley), Benjamin L. Liebman (Columbia Law School), Margaret E. Roberts (UCSD) – 21st Century China Center), and Alice Wang (Columbia Law School) have posted “Automating Fairness? Artificial Intelligence in the Chinese Courts” (Columbia Journal of Transnational Law, No. 59, 2021) on SSRN. Here is the abstract:

How will surging global interest in data analytics and artificial intelligence transform the day-to-day operations of courts, and what are the implications for judicial power? In the last five years, Chinese courts have come to lead the world in their efforts to deploy automated pattern analysis to monitor judges, standardize decision-making, and observe trends in society. This article chronicles how and why Chinese courts came to embrace artificial intelligence, making public tens of millions of court judgments in the process. Although technology is certainly being used to strengthen social control and boost the legitimacy of the Chinese Communist Party, examining recent developments in the Chinese courts complicates common portrayals of China as a rising exemplar of digital authoritarianism. Data are incomplete, and algorithms are often untested.

The rise of algorithmic analytics also risks negative consequences for the Chinese legal system itself, including increased inequality among court users, new blind spots in the state’s ability to see and track its own officials and citizens, and diminished judicial authority. Other jurisdictions grappling with how to integrate artificial intelligence into the legal system are likely to confront similar dynamics. Framed broadly, our goal is to push the nascent literature on courts, data analytics, and artificial intelligence to consider the political implications of technological change. In particular, recent developments in China’s courts offer a caution that two powerful trends—ascendant interest in algorithmic governance and worldwide assaults on judicial authority—could be intertwined.

Tiamiyu on The Impending Battle for the Soul of Online Dispute Resolution

Oladeji Tiamiyu (Harvard Law School) has posted “The Impending Battle for the Soul of Online Dispute Resolution” (Cardozo J. Conflict Resol. 21) on SSRN. Here is the abstract:

Legal professionals and disputants are increasingly recognizing the value of online dispute resolution (“ODR”). While the coronavirus pandemic forced many to resolve disputes exclusively online, potentially resulting in long-term changed preferences for different stakeholders, the pre-pandemic trend has involved a dramatic increase in technological tools that can be used for resolving disputes, particularly with facilitative technologies, artificial intelligence, and blockchains. Though this has the added benefit of increasing optionality in the dispute resolution process, these novel technologies come with their own limitations and also raise challenging ethical considerations for how ODR should be designed and implemented. In considering whether the pandemic’s tectonic shifts will have a permanent impact, this piece has important implications for the future of the legal profession, as greater reliance on ODR technologies may change what it means to be a judge, lawyer, and disputant. The impending battle for the soul of ODR raises important considerations for fairness, access to justice, and effective dispute resolution—principles that will continue to be ever-present in the field.

Kohl on Jurisdiction in Network Society

Uta Kohl (University of Southampton) has posted “Jurisdiction in Network Society” on SSRN. Here is the abstract:

Jurisdiction – or more precisely the entitlement to regulate a transnational event, that is to make, apply and enforce laws in respect of it – continues to be a live issue within the arena of network regulation and to evolve in line with wider regulatory trends. The controversy in the online environment has shifted away from the question of whether and, if so, when a State may apply its defamation, privacy, contract and intellectual property law, or criminal and regulatory law on eg. obscenity, pharmaceutical licencing and gambling to a global online activity. Now the focus is on more pragmatic concerns and in particularly, on the dominant tech platforms and their gatekeeping and data collection capacities, and when and how they may be co-opted by into the business of territorial regulation. This chapter selectively traces jurisdictional developments as constitutive of these new regulatory trends in network society, set against customary international law on legislative, adjudicative and executive jurisdiction. It posits that the authority of the territorial State is after all not weakened by the rise of a global network society, and might even be strengthened by it.

Yueh-Ping Yang on When Jurisdiction Rules Meet Blockchain

Alex Yueh-Ping Yang (National Taiwan University – College of Law) has posted “When Jurisdiction Rules Meet Blockchain: Can the Old Bottle Contain the New Wine?” on SSRN. Here is the abstract:

The distributed nature of blockchain poses challenges to the existing legal system, notably the jurisdiction rules addressing court jurisdiction and governing laws. The In re Tezos case, a securities law dispute brought in the District Court of Northern District of California of the United States, was the case facing this particular challenge. In this paper, I conduct a case study of the In re Tezos case to illustrate how the distributed nature of blockchain impacts the determination of court jurisdiction and governing law in the securities regulation context. I argue that while the internet has already complicated those effect-based jurisdiction rules, blockchain further complicated those conduct-based jurisdiction rules. With this understanding, I offer several principles for addressing the jurisdiction issues in cases involving blockchain-based securities. Specifically, I propose an effect-based jurisdiction rule limited by a de minimis exception to mitigate blockchain’s impact, enhance legal certainty, and promote international coordination.

Schmitz & Martinez on ODR in the United States

Amy J. Schmitz (Ohio State University Moritz College of Law) and Janet Martinez (Stanford Law School) have posted “ODR and Innovation in the United States” (in ONLINE DISPUTE RESOLUTION: THEORY AND PRACTICE: A TREATISE ON TECHNOLOGY AND DISPUTE RESOLUTION (Wahab, Katsh and Eds., 2021)) on SSRN. Here is the abstract:

Technology is revolutionizing the Alternative Dispute Resolution (ADR) field, especially in the wake of Covid-19. Despite the long-held assumptions that increasing understanding, building empathy, and crafting resolution are only possible in-person, effective ways have emerged for assisting the resolution of the exploding number of disputes that have burgeoned online. Technology has become the “fourth party” through the growing field of online dispute resolution (ODR), which includes use of technology and computer-mediated-communication (CMC) in negotiation, mediation, arbitration and other dispute resolution processes. ODR is infiltrating every area of dispute resolution, from courts (small claims, tax, landlord/tenant, family and more) to the block chain. Furthermore, innovation in the field continues to grow, as institutionalization expands in the U.S. legal tech market. Nonetheless, it is questionable whether this expansion has sufficiently considered sound and ethical dispute system design. This chapter in a new Treatise on ODR explores ODR’s recent development in the U.S., analyzes the providers that self-identified as providing “ODR” to the National Center for Technology and Dispute Resolution (NCTDR) in the U.S., and proposes closer attention to dispute system design. Moreover, the chapter invites further innovation and research in the ODR to advance access to justice.

Zambrano, Guha & Henderson on Vulnerabilities in Discovery Tech

Diego Zambrano (Stanford), Neel Guha (Stanford), and Peter Henderson (Stanford) have posted “Vulnerabilities in Discovery Tech” (Harvard Journal of Law & Technology, (2022 Forthcoming) on SSRN. Here is the abstract:

Recent technological advances are changing the litigation landscape, especially in the context of discovery. For nearly two decades, technologies have reinvented document searches in complex litigation, normalizing the use of machine learning algorithms under the umbrella of “Technology Assisted Review” (TAR). But the latest technological developments are placing discovery beyond the reach of attorney understanding and firmly in the realm of computer science and engineering. As lawyers struggle to keep up, a creeping sense of anxiety is spreading in the legal profession about a lack of transparency and the potential for discovery abuse. Judges, attorneys, bar associations, and scholars warn that lawyers need to closely supervise the technical aspects of TAR and avoid the dangers of sabotage, intentional hacking, or abuse. But none of these commentators have defined with precision what the risks entail, furnished a clear outline of potential dangers, or defined the appropriate boundaries of debate.

This Article provides the first systematic assessment of the potential for abuse in technology-assisted discovery. The Article offers three contributions. First, our most basic aim is to provide a technical but accessible assessment of vulnerabilities in the TAR process. To do so, we use the latest computer science research to identify and catalogue the different ways that TAR can go awry, either due to intentional abuse or mistakes. Second, with a better understanding of how discovery can be subverted, we then map potential remedies and reassess current debates in a more helpful light. The upshot is that abuse of technology-assisted discovery is possible but can be preventable if the right review processes are in place. Finally, we propose reforms to improve the system in the short and medium term, with an emphasis on improved metrics that can more fully measure the quality of TAR. By exploring the technical background of discovery abuse, the Article demystifies the engineering substrate of modern discovery. Undertaking this study shows that lawyers can safeguard technology-assisted discovery without surrendering professional jurisdiction to engineers.