Anthony Niblett

Unintended Consequences: The Regressive Effects of Increased Access to Courts: The Regressive Effects of Increased Access to Courts

Small claims courts enable parties to resolve their disputes relatively quickly and cheaply. The courts limiting feature, by design, is that alleged damages must be small, in accordance with the jurisdictional limit at that time. Accordingly, one might expect that a large increase in the upper limit of claim size would increase the courts accessibility to a larger and potentially more diverse pool of litigants. We examine this proposition by studying the effect of an increase in the jurisdictional limit of the Ontario Small Claims Court. Prior to January 2010, claims up to

Self-Driving Contracts

10,000 could be litigated in the small claims court. After January 2010, this jurisdictional limit increased to include all claims up to

Law in the Future

25,000. We study patterns in nearly 625,000 disputes over the period 2006–2013. In this article, we investigate plaintiff behavior. Interestingly, the total number of claims filed by plaintiffs does not increase significantly with the increased jurisdictional limit. We do find, however, changes to the composition of plaintiffs. Following the jurisdictional change, we find that plaintiffs using the small claims court are, on average, from richer neighborhoods. We also find that the proportion of plaintiffs from poorer neighborhoods drops. The drop‐off is most pronounced in plaintiffs from the poorest 10 percent of neighborhoods. We explore potential explanations for this regressive effect, including crowding out, congestion, increased legal representation, and behavioral influences. Our findings suggest that legislative attempts to make the courts more accessible may have unintended regressive consequences.

The Evolution of a Legal Rule

Ex post gap filling is a central function of contract law. This is about to change. Predictive capabilities created by big data and artificial intelligence increasingly allow parties to draft contracts that fill their own gaps and interpret their own standards without adjudication. With these self-driving contracts, parties can agree to broad objectives and let automated analytics fill in the specifics based on real-time contingencies. Just as a self-driving car fills in the driving details to get its passenger to a designated end point, the self-driving contract fills in the contract details to achieve the parties’ designated outcome. This development suggests a new focus for the doctrine and theories of contract law. Our primary goal in this Article is to introduce and develop that new focus. For example, self-driving contracts are both complete and incomplete. They are complete in that they specify actions for every contingency. This reduces the likelihood of breach and renegotiation. It also means that notions of efficient breach and ex post hold-up will be of reduced importance in contract law. At the same time, self-driving contracts are also incomplete in ways that render current notions of definiteness and mutual assent irrelevant or at best misleading. Perhaps most importantly, with contracts being interpreted by their own internal software, contract law will have to focus on where that software comes from and how it operates. Markets will arise for third-party vendors who either certify or provide independent contract programming. In some cases, these will be new markets; in others, they will evolve from existing markets such as the market for contract arbitrators. Law will play a role in supporting and overseeing these markets. We explore that role, and how it will differ in markets for contracts between sophisticated parties and in markets for consumer contracts.

Case-by-Case Adjudication and the Path of the Law

The set of tasks and activities in which humans are strictly superior to computers is becoming vanishingly small. Machines today are not only performing mechanical or manual tasks once performed by humans, they are also performing thinking tasks, where it was long believed that human judgment was indispensable. From self-driving cars to self-flying planes; and from robots performing surgery on a pig to artificially intelligent personal assistants, so much of what was once unimaginable is now reality. But this is just the beginning of the big data and artificial intelligence revolution. Technology continues to improve at an exponential rate. How will the big data and artificial intelligence revolutions affect law? We hypothesize that the growth of big data, artificial intelligence, and machine learning will have important effects that will fundamentally change the way law is made, learned, followed, and practiced. It will have an impact on all facets of the law, from the production of micro-directives to the way citizens learn of their legal obligations. These changes will present significant challenges to human lawmakers, judges, and lawyers. While we do not attempt to address all these challenges, we offer a short and positive preview of the future of law: a world of self-driving law, of legal singularity, and of the democratization of the law.