In Jeff Bezos’s nasty fight with a tabloid, a hint of how transparency in e-commerce is guiding the design of online courts in the litigation revolution

 

' decorative grille, Frank Lloyd Wright, Marin superior court postgutenberg@gmail.com

Sumptuous court buildings can seem like tributes to the inequality that litigation exacerbates. Photograph: at the entrance to the Marin superior court in California, a decorative grille designed by Frank Lloyd Wright

Dear Jeff Bezos,

For a few days earlier this month, you were an internet hero for scuppering the National Enquirer’s attempt to bully and humiliate you with legalistic tactics.  You challenged its overseers to go ahead and carry out their threat to publish embarrassing private photographs of you if you did not sign a statement attesting to a thought that never crossed your mind — that this tabloid was not playing politics when it ran its exposé in January about your extra-marital affair. You published lawyers’ email messages setting out this demand in your blog post on Medium in which you called it extortion. 

Rather than sign any such document, you said, ‘I prefer to stand up, roll this log over, and see what crawls out.’

Bravo! Sadly, dismal partisan politics and questions about possible links between this fight and the White House and Saudi Arabia dominated public discussion of your ordeal. No one in the commentariat seemed to notice that you’d struck a mighty blow for justice and the common man and woman. You have more than enough money to have not merely caved in to the tabloid’s demands and paid it off in deepest secrecy, but to have quietly bought it and its staff and shut it down, as an alternative. Instead, you trained a blazing spotlight on the thuggish tactics used routinely by lawyers working for rich clients in disputes typically marked by a striking imbalance of power.

What the eminent legal scholar Hazel Genn has observed about the pattern in Britain is equally true of the U.S.. Lawyers and litigation exacerbate inequality. She has said:

Parties are not both volunteers in litigation. One side may be forced into the process against its will. … [I]n the vast majority of […] cases the initiator is a business or institution rather than an individual. With the exception of personal injury proceedings, individuals’ experience of court proceedings is as a defendant rather than a claimant.

For anyone who discovers this truth from experience, the imposing architecture of court buildings — whether classical or modern, hideous or beautiful — makes them look less like temples to justice than casinos blatantly rigged in favour of money and power.

Outside the legal system, only those unfortunates dragged into it understand that the extortionate thrust of the emails you received is as much part of the ordinary lawyer’s toolkit as scalpels are in a surgeon’s. A former federal prosecutor told Wired that the Enquirer ‘could argue that it was merely trying in good faith to resolve a dispute with Bezos — not attempting to blackmail or extort him.’ Why? Because, as that prosecutor continued, ‘”the law regarding the distinction between extortion and settling a legal case is very unsettled — it’s not well defined.”’

Never were truer words spoken — strangely enough, about a battle that has not yet become a legal case. Answering a question on Quora.com about why people are afraid of the legal profession, a 21-year veteran of it started with a jokey pseudo-confession about dabbling in voodoo and the occult. But by his fourth paragraph, he was merely laying out (or boasting about) some of the ugliest facts about actual or potential harm of which he and too many of his colleagues are capable:

Lawyers have to fight for their clients. Most people see the calm exterior and the coldly calculating demeanor and and don’t understand [… that …] what they really see is a trained assassin, someone hired to throw you out of your house, someone who knows how to freeze your bank accounts, garnish your wages,  [and that when a lawyer] puts his or her claws in and starts to rend and tear your psyche from stem to stern, that’s when the full power of a lawyer is on display.

All that has been true for centuries, in jurisdictions all over the world — but the reason why even well-read members of the public know so little about any of it is that most of it happens far out of public view. 

That you have blown a great big hole through this secretive white collar thuggery is not all that surprising. It is strange but undeniable that although you and your fellow tech titans have fairly been accused of deviousness in surreptitiously siphoning private and personal data about us when we use your web sites and products —  as in, most recently, eavesdropping by your Alexa and Google’s Nest that might or might not have been inadvertent — transparency is one of the shining virtues of e-commerce. It is as important as convenience in explaining how online shops have been so successful at leading consumers away from bricks-and-mortar retailing.

The influence of e-commerce is leaping a long way past its boundaries. The online auctioneer eBay, of all things, has been a guiding light for the design of Britain’s online court. For years, thanks to what Ms Genn (or formally, Dame Hazel Genn) has called a ‘reform-minded senior judiciary, supported by a major government investment in technology,’ Richard Susskind — the IT adviser to the Lord Chief Justice for the last 20 years — has held up as a model for redesigning courts for the internet age, ‘the 60 million disagreements between traders solved by eBay’s online argument settling system.’ 

Michael Briggs (formally, Lord Briggs) — a judge who has been crucial to the shaping of Britain’s online court — has said that it will not be as ‘robotic’ as eBay’s processes. But eBay-like transparency will be of its essence — the idea that justice must not only be delivered but seen to be done. As Ms Genn has explained, that means in part, ‘transparency in procedures, conspicuous impartiality and consistency, explanation of rules and decisions, and the promotion of procedures that give parties a voice in the proceedings.’ All those are well-known features of eBay’s modus operandi.

Closer to home for you, radical transparency is of course a hallmark of Amazon’s transformation of — for instance — book-buying. Anyone can browse on your site and instead of looking at just a print volume sitting on a shelf with a price sticker, can, in less than a minute, complete comparison-shopping for the e-book version with hardback and paperback alternatives and, with a few more minutes to spare, scan dozens of offers of second-hand books with descriptions of their physical condition from sellers who can be merely a short drive or a continent away.

For shopping unrelated to books, on the pages on your site for innumerable other products, your virtual store persistently reminds shoppers  of ‘more buying choices’ — lower prices from other sellers — and clearly demarcates listings that are advertisements or ‘sponsored’ displays.

We take all this for granted, now.

In his 2013 book, Tomorrow’s Lawyers, Richard Susskind describes ‘early incarnations’ of ‘an electronic legal marketplace’ that ‘include online reputation systems, which allow clients to share their views, online, on the performance and levels of service of their lawyers […], price comparison systems, which put the respective prices and rates of legal advisers and law firms on simple websites; and online legal auctions, not unlike eBay in concept, but best suited to legal work packages that are routine and repetitive.’ 

These windows into the mechanisms and methods of legal systems of the future are only part of the openness that will make it increasingly difficult for change-resistant lawyers to practise their dark arts.

Some American law reformers dismayed about their country’s slowness to join this revolution believe that technology companies could get involved to speed up the long-overdue benign disruption that their system is widely acknowledged to need.

Could there be a role for Amazon and you, here — performed, perhaps, through a special, new, not-for-profit legal services division?

Just a thought for you — about a chance, at the level of U.S. law and the courts, to roll over that log you mentioned, and make sure it is never repositioned to cover up foul, flagrantly unfair behaviour indulged in as a matter of course. 

Looking forward with keenest interest to seeing where your brush with darkness leads you next,

pG

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