Access to Justice and Civil-Procedural Bargaining

Abstract

There is a virtual consensus that there is an ‘access-to-justice’ crisis in Canada. Some of the more concerning elements of the crisis – namely, the inaccessibility of courts – were brought into sharp focus at the onset of the global COVID-19 pandemic, wherein the already strained Ontario courts seemed poised to incur more ‘case debt’ and add to their already lengthy backlog. Responsively, governments and courts mounted a series of immediate reforms that were aimed at coping with the acute crisis, many of which were generally helpful measures that access-to-justice proponents advocated for even in non-emergency contexts. The relatively swift, frictionless nature of the changes – surely abetted by the emergency context – suggests that access-to-justice proponents, who often advocate large-scale legal, policy, and regulatory reforms, should consider what other such immediate, ‘low-hanging fruit’ interventions are available. Civil procedure offers fertile ground for such interventions. To this end, this article seeks to inform future reform efforts with three contributions. First, I argue that the access-to-justice problem is properly characterized as a civil-procedural problem. Second, I offer a new typology of civil procedural rules to fill conceptual gaps in the scholarship. Third, relying on an emergent literature about the concept of ‘procedural flexibility,’ I argue that procedural rules are more negotiable than traditional accounts contemplate, which presents opportunities for the practice of procedural bargaining as an access-to-justice tool.

AI and the nature of disagreement

“…These concerns include algorithmic bias [44], lack of transparency [45], failure to provide adequate explanations [46,47] and whether citizens will trust the decisions of an algorithm. Using algorithms based on previous decisions, if used categorically, could calcify the common law, potentially limiting their usefulness in new or rapidly evolving legal areas [48]. And difficult problems emerge when turning probabilistic predictions into binary legal outcomes [13,14].…”