Ayelet Sela

In an era of diminished trial rates and prevalent settlements, what is the role of judges in civil litigation? We introduce an analytical framework for answering this question using docket data from civil trial courts, and discuss its policy implications. The analysis rests on examining the relationship between judges' procedural involvement (JPI) in litigation and cases' mode of disposition (MoD). We differentiate between three JPI categories: 1) ruling on motions, 2) conducting pretrial case-management and settlement hearings, and 3) presiding over trials. A fourth category represents cases that terminated without JPI, which form the court's institutional function. MoDs include judgment on the merits, settlement and six other categories. Given the sizeable institutional function and scarcity of trial and judgment, we show the usefulness of juxtaposing the JPI and MoD. First, it illuminates the interplay between the "vanishing-trial" and settlement phenomena. ...

This paper suggests the use of automatic topic modeling for large-scale corpora of privacy policies using unsupervised learning techniques. The advantages of using unsupervised learning for this task are numerous. The primary advantages include the ability to analyze any new corpus with a fraction of the effort required by supervised learning, the ability to study changes in topics of interest along time, and the ability to identify finer-grained topics of interest in these privacy policies. Based on general principles of document analysis we synthesize a cohesive framework for privacy policy topic modeling and apply it over a corpus of 4,982 privacy policies of mobile applications crawled from the Google Play Store. The results demonstrate that even with this relatively moderate-size corpus quite comprehensive insights can be attained regarding the focus and scope of current privacy policy documents. The topics extracted, their structure and the applicability of the unsupervised approach for that matter are validated through an extensive comparison to similar findings reported in prior work that uses supervised learning (which heavily depends on manual annotation of experts). The comparison suggests a substantial overlap between the topics found and those reported in prior work, and also unveils some new topics of interest.

Recent years have seen the emergence of online courts and tribunals: digital platforms that enable self-represented litigants (SRLs) to complete electronically the entire court (or tribunal) process, from filing through final disposition. This article proposes that the unique nature of online courts as digital interfaces enables them to implement a new strategy—diversity by design—to improve access to justice and procedural justice for a diverse population of SRLs. Reflecting a human-centered legal design approach, and building on research in human-computer interaction and digital choice architecture, this strategy entails embedding diversity accommodating features in the technological design of court platforms. Specifically, building on the empirical relationship between users’ demographic attributes and their digital usability and aesthetics judgments, this article suggests that online courts can dynamically adapt their interfaces according to the attributes of a given user in way...

In the civil justice system, judges engage in case management and settlement promotion more than they do in trials and judgment. Despite the importance of a judge’s role in settlement, its empirical depiction and jurisprudential theorization are lacking. This gap is likely the result of a key characteristic of this judicial practice: it takes place ‘off the record.’ Using original data from a series of courtroom observations in pretrial settlement hearings in Israeli courts, we present new evidence and analyses of this important feature of civil litigation—which is also prevalent in many common law jurisdictions. Based on a thematic analysis of the observations, we discuss eleven structural features, techniques, and attitudes that characterize judges’ courtroom settlement practices. We provide real-life examples of each theme, and discuss our findings in the context of the vanishing trial phenomenon.

In both private and public justice systems, online dispute resolution (ODR) technologies are profoundly affecting people’s access to justice and redress and the nature of their procedural experiences. Automation and artificial intelligence play a key role in delivering the promise of ODR. At the same time, there are challenging normative and practical concerns regarding the ability of “machine made justice” to meet appropriate procedural and substantive standards. The article presents a conceptual framework for evaluating the role of technology in dispute resolution and its effect on procedural justice. Subsequently, it proposes an instrument for evaluating procedural justice experiences in ODR; and reports the results of a study comparing the impact of automated (software-powered) and human-powered online mediation and arbitration on disputants’ procedural justice experiences. Finally, the article discusses the implications of its findings on ODR process design, regulation, and pra...

Justice systems around the world are launching online courts and tribunals in order to improve access to justice, especially for self-represented litigants (SRLs). Online courts are designed to handhold SRLs throughout the process and empower them to make procedural and substantive decisions. To that end, they present SRLs with streamlined and simplified procedures and employ a host of user interface design and user experience strategies (UI/UX). Focusing on these features, the article analyzes online courts as digital choice environments that shape SRLs’ decisions, inputs and actions, and considers their implications on access to justice, due process and the impartiality of courts. Accordingly, the article begins to close the knowledge gap regarding choice architecture in online legal proceedings. Using examples from current online courts, the article considers how mechanisms such as choice overload, display, colorfulness, visual complexity, and personalization influence SRLs’ choi...

English Abstract: Online dispute resolution (ODR) technologies are now increasingly used by courts, administrative agencies, companies and alternative dispute resolution (ADR) organizations to handle cases in various legal domains. Two decades have passed since the first ODR systems were launched and their impact on access to justice and the delivery of justice has evolved to a great extent. This Article offers an overview and analysis of these developments. First, it discusses the pragmatic and ideological antecedents of ODR: developments in information technology and online activity, and the rise of the effective access to justice and alternative dispute resolution movements. Second, it proposes a typological framework for evaluating ODR systems in terms of dispute types, resolution methods, settings, technologies, providers, and process designs. It then uses the framework to systematically analyze the current landscape of ODR, offering specific examples of ODR systems that demons...

Cornell Journal of Law and Public Policy: Vol. 26 : Iss. 2 , Article 3. The tide of pro se litigation in the American justice system imposes significant constraints on self-represented litigants’ (SRLs) access to justice and courts’ ability to administer justice. Mitigating the challenges requires a systemic institutional and procedural reform. Advancing this approach, the Article proposes that online courts would alleviate many of the challenges associated with pro se litigation, and puts this proposition to an empirical test. To that end, the Article analyzes the challenges experienced by SRLs and courts and models the procedural and technological properties that would promote SRLs’ “day in court” as well as courts’ provision of fair and efficient access to justice. Based on the analysis and on a review of successful implementations of judicial online dispute resolution (JODR) systems, the Article proposes a detailed policy design framework for a JODR system for pro se litigation....

We examine judges’ role in civil litigation by studying empirically the relationship between judicial procedural involvement (JPI) and lawsuits’ mode of disposition (MoD). Furthermore, we propose JPI as a metric for the allocation of judicial attention to litigants. Applying the framework to Israeli trial court data, we find that 60 per cent of cases included JPI (through hearings and rulings on motions) whereas 40 per cent involved only the court’s institutional function. By juxtaposing JPI and MoD data, we shed light on the scope of judicial involvement in settlements, the ratio between judges’ normative public-life function and their problem-solving function, and other pertinent questions. Since nowadays lawsuits are rarely adjudicated, trial rates are low, and litigants in person (pro se litigants) are common, we argue that access to justice should also be construed in terms of access to judicial attention throughout the proceeding, which is readily measurable through JPI.
The attached file contains an extended abstract.

Justice systems around the world are launching online courts and tribunals in order to improve access to justice, especially for self-represented litigants (SRLs). Online courts are designed to handhold SRLs throughout the process and empower them to make procedural and substantive decisions. To that end, they present SRLs with streamlined and simplified procedures and employ a host of user interface design and user experience strategies (UI/UX). Focusing on these features, the article analyzes online courts as digital choice environments that shape SRLs’ decisions, inputs and actions, and considers their implications on access to justice, due process and the impartiality of courts. Accordingly, the article begins to close the knowledge gap regarding choice architecture in online legal proceedings.

Using examples from current online courts, the article considers how mechanisms such as choice overload, display, colorfulness, visual complexity, and personalization influence SRLs’ choices and actions. The analysis builds on research in cognitive psychology and behavioral economics that shows that subtle changes in the context in which decisions are made steer (nudge) people to choose a particular option or course of action. It is also informed by recent studies that capture the effect of digital choice architecture on users’ choices and behaviors in online settings. The discussion clarifies that seemingly naïve UI/UX features can strongly influence users of online courts, in a manner that may be at odds with their institutional commitment to impartiality and due process. Moreover, the article challenges the view that online court interfaces (and those of other online legal services, for that matter) should be designed to maximize navigability, intuitiveness and user-friendliness. It argues that these design attributes involve the risk of nudging SRLs to make uninformed, non-deliberate, and biased decisions, possibly infringing their autonomy and self-determination. Accordingly, the article suggests that choice architecture in online courts should aim to encourage reflective participation and informed decision-making. Specifically, its goal should be to improve SRLs’ ability to identify and consider options, and advance their own — inherently diverse — interests. In order to mitigate the abovementioned risks, the article proposes an initial evaluation framework, measures, and methodologies to support evidence-based and ethical choice architecture in online courts.

In both private and public justice systems, online dispute resolution (ODR) technologies are profoundly affecting people’s access to justice and redress and the nature of their procedural experiences. Automation and artificial intelligence play a key role in delivering the promise of ODR. At the same time, there are challenging normative and practical concerns regarding the ability of “machine made justice” to meet appropriate procedural and substantive standards. The article presents a conceptual framework for evaluating the role of technology in dispute resolution and its effect on procedural justice. Subsequently, it proposes an instrument for evaluating procedural justice experiences in ODR; and reports the results of a study comparing the impact of automated (software-powered) and human-powered online mediation and arbitration on disputants’ procedural justice experiences. Finally, the article discusses the implications of its findings on ODR process design, regulation, and practice, and calls for updating the research agenda on these issues.

Online dispute resolution (ODR) technologies are now increasingly used by courts, administrative agencies, companies and alternative dispute resolution (ADR) organizations to handle cases in various legal domains. Two decades have passed since the first ODR systems were launched and their impact on access to justice and the delivery of justice has evolved to a great extent. This Article offers an overview and analysis of these developments. First, it discusses the pragmatic and ideological antecedents of ODR: developments in information technology and online activity, and the rise of the effective access to justice and alternative dispute resolution movements. Second, it proposes a typological framework for evaluating ODR systems in terms of dispute types, resolution methods, settings, technologies, providers, and process designs. It then uses the framework to systematically analyze the current landscape of ODR, offering specific examples of ODR systems that demonstrate the effects that technology has had on dispute resolution process design: procedural transposition, restructuring and novelty. The Article closes with a critical discussion of current trends and future directions of ODR, including transition from private to public ODR, hybrid process designs, crowd-sourced cyber-juries, connecting ODR with reputation systems, and data-driven ODR learning systems.

The tide of pro se litigation in the American justice system imposes significant constraints on self-represented litigants’ (SRLs) access to justice and courts’ ability to administer justice. Mitigating the challenges requires a systemic institutional and procedural reform. Advancing this approach, the Article proposes that online courts would alleviate many of the challenges associated with pro se litigation, and puts this proposition to an empirical test. Specifically, the article introduces a model for a Judicial Online Dispute Resolution (JODR) system for pro se litigation, and reports the findings of a study testing its effect on SRLs’ procedural justice experiences.

Section I describes the realities of pro se litigation in the United States; the unique characteristics and challenges associated with it from the perspective of both SRLs and courts and the measures employed to address them. Section II introduces the field of ODR and reviews key JODR implementations. Section III proposes a framework for a JODR system for pro se litigation, focusing on non-prisoner civil and administrative proceedings between government agencies and self-represented individuals—whether in court or administrative trial-like hearings. Section IV reports the results of an experiment comparing the effect of JODR system designs that rely on asynchronous online text and video communication on SRLs’ procedural justice experiences. Its two main findings are a) that the judicial officer’s (judge) medium of communication has a consistent main effect on SRLs’ procedural experiences (regardless of whether SRLs used text or video communications); and b) that a system design whereby the judicial officer (judge) communicates via video messages and the SRL communicates via text messages is advantageous in terms of SRLs’ procedural justice experiences compared to both the prevalent ODR system design of two-way text communication as well as the theoretically celebrated two-way video communication. Finally, section V concludes the article, discussing implications and directions for future research.

“Held to appropriate process and technology design standards, online judicial dispute resolution systems can improve the quality of SRLs’ participation, their procedural justice experiences, and the overall fairness of the process. Technology is at our fingertips; justice may very well be too.”

תקציר בעברית: עם פרוץ מגפת הקורונה בישראל, החלו בתי-משפט לקיים חלק מדיוני המעצר כאשר החשוד או הנאשם נוכחים מרחוק—בהיוועדות חזותית (ולעיתים קולית בלבד), ואת חלקם האחר כאשר החשוד או הנאשם נוכחים פיזית באולם בית-המשפט. מדיניות זו הוחלה הן על דיוני "מעצר ימים", הן על דיוני "מעצר עד-תום-ההליכים". המאמר מתבסס על מסד נתונים ייחודי של 376 תצפיות מובנות ופתוחות (אתנוגרפיות) בדיוני מעצר שהתקיימו בהיוועדות חזותית ובאופן פרונטלי בבית-משפט השלום בתל-אביב בשנה הראשונה למגפה. למחקר שתי תרומות מרכזיות: ראשית, המאמר מספק תיעוד אמפירי עשיר של התופעה הייחודית של ניהול דיוני מעצר בהיוועדות חזותית בתקופת הקורונה. שנית, המאמר מעיין מחדש במשמעותה ותפקידה של זכות הנוכחות בהליכי מעצר ומציע מסגרת תיאורטית להבנתה בהתבסס על תכליותה.

לטענתנו, בבחינת מימוש זכות הנוכחות, השאלה המשמעותית אינה עצם הימצאותו הפיזית או המקוונת של העצור בדיון אלא האם ניתנה לו הזדמנות ממשית להשתתף בהליך, קרי, להבין את שמתרחש בו ולהשפיע עליו. אנו שואבות את שני האדנים של המשגה זו מהמסגרת התיאורטית של צדק תהליכי, הקושרת בין היכולת של העצור להבין את המתרחש בדיון ולהשמיע את קולו לבין הוגנות ההליך, ובתוך כך היכולת להשפיע על היחס מצד גורמי הסמכות ועל החלטותיהם. המאמר מציג ממצאים ביחס למימושה זכות הנוכחות "מבעד למסך" במתכונת דיוני המעצר מרחוק בתקופת הקורונה, וזאת מנקודת מבט חיצונית לתפיסות הסובייקטיביות של משתתפי ההליך. ממצאינו מצביעים על הפער שקיים בין ההליך באולם בית-המשפט (זירת הדיון המרכזית) לבין "ההליך הנראה במסך" של העצור (זירת הלווין), וכן על מגבלות בתקשורת של העצור עם הנוכחים באולם. על רקע זה, אנו מציעות לאמץ מודל חלופי להליכי מעצר מרחוק שיעניק לעצור הזדמנות ממשית טובה יותר להשתתף בהליך: "בית-משפט מבוזר" (Distributed Court). במודל זה, כלל המשתתפים מתחברים לדיון מרחוק, ממיקומים פיזיים שונים, כשהם חולקים יחד מרחב אינטראקציה מקוון ומשותף, אשר תומך בחוויית נוכחות שוויונית יותר. בהמשך לכך, אנו דנות בארכיטקטורות טכנולוגיות אפשריות למימוש מודל זה.

באמצעות רבדיו העיוניים והאמפיריים, המאמר מבקש לתרום לספרות ולמדיניות בנוגע לניהול דיונים בהיוועדות חזותית וכן לשיח הכללי בדבר זכות הנוכחות בהליכי מעצר.

English Abstract: Upon the outbreak of the Covid-19 pandemic in Israel, courts began to hold some criminal detention hearings when the arrestee is present remotely—through videoconference; and others when the arrestee is physically present in the courtroom. This policy was applied both to pretrial detention of criminal suspects, and to post-indictment detention of defendants, for the duration of the trial. The article is based on an original dataset comprising 376 structured and open-ended (ethnographic) observations in remote and face-to-face criminal detention hearings at Tel-Aviv Magistrate Court, during the first year of the pandemic. We offer two primary contributions to the study of this phenomenon: First, we provide a rich empirical documentation of remote criminal detention hearings via videoconference during the pandemic, including a rich depiction of the interplay between the technological infrastructure and key elements such as attorney-client communication and the ability of detainees to see the judge and speak with her. Second, we revisit the meaning and role of the right to be present in criminal detention hearings and propose a theoretical framework that conceptualizes this right based on its purposes.
We argue that in evaluating the exercise of the arrestee’s right to presence, the mere presence of the detainee in the hearing, whether physically in the courtroom or remotely via videoconference, should not be the focus. Instead, the right to presence should be evaluated based on whether the detainee was given a meaningful opportunity to participate in the proceedings, that is, to follow and understand what is happening in the hearing, and influence it. We derive the two tenants of this conceptualization from the theoretical framework of procedural justice. According to procedural justice theories, detainees’ perceptions of the fairness of the proceeding are shaped by their ability to follow and understand it as well as make their voice heard by the decision-maker, thereby influencing both their treatment and the outcome of the proceeding. Subsequently, the article presents findings regarding the exercise of the right to presence “via screens,” from an external viewpoint, that is, as it appears in courtroom observations, as distinct from subjective perceptions of participants.

Our findings depict a gap between the hearing that takes place in the courtroom, as the primary arena of the proceedings, and “hearing on screen”—the remote detainee’s satellite court arena, which is virtually accessed from the detention facility, via videoconference. Further, we provide a rich description of the constraints that this technological setting imposes on communication between the detainees and other stakeholders that are physically present in the courtroom.

Against this backdrop, we propose adopting an alternative distributed court model for conducting remote criminal detention hearings. In this model, all stakeholders participate in the hearing remotely, connecting online from different physical locations and sharing a common virtual space of the hearings. We argue that compared to the current model, a distributed court model promotes a more equal sense of presence, allowing detainees an improved opportunity to effectively participate in the proceedings. Finally, we discuss three alternative technological architectures that can be used to realize this model.

Recent years have seen the emergence of online courts and tribunals: digital platforms that enable self-represented litigants (SRLs) to complete electronically the entire court (or tribunal) process, from filing through final disposition. This article proposes that the unique nature of online courts as digital interfaces enables them to implement a new strategy-Diversity by Design-to improve access to justice and procedural justice for a diverse population of SRLs. Reflecting a human-centered legal design approach, and building on research in human-computer interaction and digital choice architecture, this strategy entails embedding diversity accommodating features in the technological design of court platforms. Specifically, building on the empirical relationship between users' demographic attributes and their digital usability and aesthetics judgments, this article suggests that online courts can dynamically adapt their interfaces according to the attributes of a given user in ways that help diverse SRLs engage with online courts, support their effective participation in proceedings, and improve their procedural experiences. The potential impacts include enhancing SRLs' confidence and trust in using online courts and ameliorating their ability to process information, deliberate, make informed decisions and communicate them. Finally, the article discusses concerns regarding the desirability and ethicality of dynamically adapting, that is-personalizing, court interfaces.