BALANCING THE SCALES: THE FORD-FIRESTONE CASE, THE INTERNET) AND THE FUTURE DISPUTE RESOLUTION LANDSCAPE

Yale Journal of Law and Technology Volume 6 Issue 1 Yale Journal of Law and Technology Article 1 2004 BALANCING THE SCALES: THE FORDFIRESTONE CASE, THE INTERNET) AND THE FUTURE DISPUTE RESOLUTION LANDSCAPE ORNA RABINOVICH-EINY Follow this and additional works at: https://digitalcommons.law.yale.edu/yjolt Part of the Computer Law Commons, Intellectual Property Law Commons, and the Science and Technology Law Commons Recommended Citation ORNA RABINOVICH-EINY, BALANCING THE SCALES: THE FORD-FIRESTONE CASE, THE INTERNET) AND THE FUTURE DISPUTE RESOLUTION LANDSCAPE, 6 Yale J.L. & Tech (2004). Available at: https://digitalcommons.law.yale.edu/yjolt/vol6/iss1/1 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law and Technology by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . RABINOVICH-EINY: BALANCING THE SCALES ARTICLE BALANCING THE SCALES: THE FORD-FIRESTONE CASE, THE INTERNET) AND THE FUTURE DISPUTE RESOLUTION LANDSCAPE ORNA RABINOVICH-EINY* I. INTRODUCTION ..................................................................... 2 THE FORD-FIRESTONE STORY ................................................. 3 CHARACTERISTICS OF THE TRANSITION INTO AN INTERNET SOCIETY .................................. 7 A . EQUALIZATION ................................................................ 8 B. D ISINTERMEDIATION ....................................................... 12 C. GLOBALIZATION AND DECENTRALIZATION ...................... 13 D. CULTURAL DIFFERENCES ............................................... 17 E. PRIVATE KNOWLEDGE VERSUS PUBLIC WELFARE ............. 19 F. CONFLICT AND DISPUTE RESOLUTION .............................. 20 IV. TRADITIONAL DISPUTE RESOLUTION INSTITUTIONS ............... 21 A . THE APPEAL OF AD R ....................................................... 21 B. THE ADVANTAGES OF THE COURT SYSTEM ....................... 23 C. CRITIQUES OF TRADITIONAL DISPUTE RESOLUTION MECHANISMS .............................. 24 1. C OURTS .................................................................... 24 II. III. 2. V. A DR ....................................................................... ANALYSIS OF DISPUTE RESOLUTION INSTITUTIONS IN THE INTERNET AGE ................................... A. O D R ............................................................................ 27 29 29 B. C. FUTURE COURTS ............................................................. 37 THE FUTURE OF ADR .................................................... 42 VI. RESOLVING THE FORD-FIRESTONES OF THE FUTURE ................ 46 V II. C ON CLUSION ....................................................................... 52 * JSD Candidate, Columbia University School of Law. I would like to thank the following people for their ideas, comments and support: Eben Moglen, Carol Bensinger Liebman, Ronald Jay Gilson, Joseph Triebwasser, Sagit Mor, Faina Milman, Itamar Rabinovich, Uri Einy and the participants in the ODR workshop held in Edinburgh on June 28, 2003 as part of the International Conference on Artificial Intelligence and the Law. I would like to give special thanks to Paul Szynol and the rest of the editorial staff at the Yale Journal of Law & Technology for their thoughtful comments and assistance. Published by Yale Law School Legal Scholarship Repository, 2004 1 Yale Journal of Law and Technology, Vol. 6 [2004], Iss. 1, Art. 1 YALE JOURNAL OF LAW & TECHNOLOGY 2003-2004 BALANCING THE SCALES: THE FORD-FIRESTONE CASE, THE INTERNET, AND THE FUTURE DISPUTE RESOLUTION LANDSCAPE ORNA RABINOVICH-EINY The authordiscusses the Internet'spotentialequalizing effect on dispute resolution institutions. The emergence of online dispute resolution (ODR) mechanisms and virtual courts are the clearest manifestation of the Internet's influence on dispute resolution, but its influence extends beyond the immediate online environment, as is demonstrated throughout the Article by analyses of various examples and the specific case study of the Ford-Firestonedebacle. The Ford-Firestonestory provides a rich case study for the positive potential as well as the pitfalls of resolving disputes in the nascent Internet society, and it is especially useful for dispelling the notion that the Internet will only affect technology-related disputes. The author analyzes dispute resolution institutions (courts and ADR mechanisms) as they currently exist and as they are likely to develop in the future. The Article's prediction and main thesis is that as a result of the introduction of new technologies, traditionally disempowered disputants could potentially experience greater equality in the dispute resolution institutionsof the Internet society. The Article concludes with a demonstration of how disputes similar to the Ford-Firestonecase study will be played out in the landscape of the future. I. INTRODUCTION Dispute resolution institutions are not isolated bodies; "they are in and of society," 1 and therefore are shaped by the technological and social changes that society undergoes. The Internet in particular has affected dispute resolution institutions in manifold ways. Before the proliferation of Internet communication, courts possessed unique qualities in dispute resolution that could not be replicated by other dispute resolution mechanisms: authority, finality and enforcement. But inherent in the court system are structural barriers that adversely affect litigants who lack the skills and funds to master and maneuver the system. Alternative dispute resolution (ADR) mechanisms, while offering distinctive advantages and remedying some of the ills of the 1 Lawrence Friedman, Court over Time: A Survey of Theories and Research, in EMPIRICAL THEORIES ABOUT COURTS (Keith 0. Boyum & Lynn Mather eds., 1983). https://digitalcommons.law.yale.edu/yjolt/vol6/iss1/1 2 RABINOVICH-EINY: BALANCING THE SCALES 0. RABINOVICH-EINY BALANCING THE SCALES court system, have perpetuated some of the inequities characteristic of courts. With the emergence of the Internet, however, several important changes have occurred both in the court system and ADR mechanisms, changes that have permanently altered the landscape of dispute resolution by offering greater equality for traditionally disempowered disputants. This article examines the influence the Internet has already had as well as the influence the Internet is likely to have on dispute resolution mechanisms and processes. The emergence of online dispute resolution (ODR) mechanisms and the likely widespread availability of virtual courts in the future are the clearest manifestation of such influence. But the Internet's effects on the dispute resolution landscape extend beyond the online environment, as is demonstrated throughout this article in the analysis of various examples and the specific (...truncated)