Although proponents of online dispute resolution systems proclaim that their innovations will expand access to justice for so-called “simple cases,” evidence of how the technology actually operates and who is benefitting from it demonstrates just the opposite. Resolution of some disputes may be more expeditious and user interface more intuitive. But in order to achieve this, parties generally do not receive meaningful information about their rights and defenses. The opacity of the technology (ODR code is not public and unlike court appearance its proceedings are private) means that due process defects and systemic biases are difficult to identify and address. Worse still, the “simple cases” argument for ODR assumes that the dollar value of a dispute is a reasonable proxy for its complexity and significance to the parties. This assumption is contradicted by well established research on procedural justice. Moreover, recent empirical studies show that low money value cases, which dominate state court dockets, are for the most part debt collection proceedings brought by well-represented private creditors or public creditors (including courts themselves, which increasingly depend on fines and fees for their operating budget). Defendants in these proceedings are overwhelmingly unrepresented individuals. What ODR offers in these settings is not access to justice for ordinary people, but rather a powerful accelerated collection and compliance technology for private creditors and the state. This chapter examines the design features of ODR and connects them to the ideology of tech evangelism that drives deregulation and market capture, the aspirations of the alternative dispute resolution movement, and hostility to the adversary system that has made strange bedfellows of traditional proponents of access to justice and tech profiteers. The chapter closes with an analysis of front-end standards for courts and bar regulators to consider to ensure that technology marketed in the name of access to justice actually serves the legal needs of ordinary people.

This chapter examines how aspects of post-capitalism have been imagined by speculative fiction, with some emphasis on utopian and dystopian fiction. There are some methodological issues around the best way to read speculative fiction in relation to post-capitalism. One influential distinction is between “blueprint” utopias and “critical” utopias. Blueprint utopias, such as Edward Bellamy’s Looking Backward (1888), are held to offer rigidly instrumental plans for reorganizing society. Critical utopias, such as Ursula K. Le Guin’s The Dispossessed (1974), supposedly destabilize deeply-rooted assumptions, freeing readers to explore possible economic forms that appear neither in reality nor fiction. However, this chapter emphasises that the distinction between blueprint and critical utopias is a blurred one. It further suggests that instrumentalizing interpretations of speculative fiction are part of its status as culture, rather than a mere misuse of speculative fiction. Reading speculative fiction critically and creatively, including attention to its instrumentalities, may help to transform what constitutes the field of “the economic” in the first place, and enrich our understanding both of capitalism and its alternatives. However, already existing practices of the more-than-capitalist world often far exceed what speculative fiction has been capable of imagining.

This chapter considers the emergence of data-driven analytics and its algorithmic techniques of imposing consequences as defining not just new modalities of governance but also as redefining governance forms, and consequently the ways that legalities entangle. The first step is to understand how data-driven governance differs from conventional forms of governance. One can then examine the points of entanglement and their character, whether within, between or beyond the conventional public law containers of legal space. At the centre is an examination of entanglement of law-norm systems and data-driven or social credit systems. That entanglement requires rationalizing a disjunction in how law/regulation systems understand data-driven metrics-based governance and vice versa, with the disjunction complicating entanglement. The first section briefly sketches the emerging legalities that neither embrace the form nor the language of law. The two sections that follow examine the nature of intersystemic entanglements when data-driven governance legal orders are thrown into the already plural mix. The first is the Chinese ‘social credit’ initiative. The second is US and Western private initiatives around emerging markets for data. Each exhibit distinct characteristics and therefore different forms and qualities of entanglement that suggest a more complex fracture and interacting among ever more different systems of legalities emerging around global trade regimes.

Data-driven algorithms are increasingly used by penal systems across western jurisdictions to predict risks of recidivism. This chapter draws on Foucauldian analysis of the epistemic power of discourse to demonstrate how the algorithms are operating as truth or knowledge producers through the construction of risk labels that determine degrees of penal governance and control. Some proponents emphasise the technical fairness of the algorithms, highlighting their predictive accuracy. But in its exploration of the algorithms and their design configurations as well as their structural implications, this paper unravels the distinctions between a criminal justice and a social justice perspective on algorithmic fairness. It argues that whilst the former focuses on the technical, the latter emphasises broader structural consequences. These include impositions of algorithmic risk labels that operate as self-fulfilling prophesies, triggering future criminalisation and consequently undermining the perceived legitimacy of risk assessment and prediction. Through its theorisation of these issues, the chapter expands the parameters of current scholarship on the predictive algorithms applied by penal systems.

One of the most plausible scenarios for how newer technologies might disrupt and reconstitute the Internet economy is based on blockchain and related mechanisms. Because of their fundamental decentralization, enforced through cryptography, these technologies hold out the promise of resisting the centralization of control by dominant digital platforms. The problem is that the power of blockchain to create trust without reliance on trusted third parties depends on immutable transactions. And that means prospectively limiting human freedom of action. Replacing human judgment with relentlessly logical machines operating self-enforcing “smart contracts” has already produced several spectacular failures. Immutability inevitably creates the possibility of catastrophe, unless paired with governance mechanisms that keep humans in the loop. The best possible approach is governance by design, incorporating layers of coordinated decision-making throughout the design of blockchain networks and applications.