A2J/A2K: Access to Justice, Access to Knowledge, and Economic Inequalities in Open Courts and Arbitrations

Abstract

The topic of this symposium, Secrecy, suggests a focus on affirmative decisions shutting out the public by sealing records and closing courtrooms. My interest, in contrast, is in a broader set of processes that makes dispute resolution inaccessible and, in that sense, secret. 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.