The crowdsourced jury

In our nation's marketplace, monopolies are the exception; in our governmental institutes, they are the rule: Only legislative bodies (and, in California, the voters themselves through the initiative process) wield legislative power; only the executive wields executive power; and only the judiciary wields judicial power.

Judicial power includes the power (1) to resolve disputes, State Board of Education v. Honig, 13 Cal. App. 4th 720, 748 (1993), (2) to enforce the resolution of those disputes, Branson v. Sharp Healthcare, Inc.,193 Cal. App. 4th 1467, 1476 n.4 (2011) ("'The power to enforce their decrees is necessarily incident to the jurisdiction of courts.'"), and (3) "to say what the law is," Marbury v. Madison, 5 U.S. 137, 177 (1803).

With the rise of arbitration and mediation in the early 20th century, the courts arguably lost their exclusive monopoly. Both enable prospective litigants to mutually "opt out" of the courts' dispute resolution function in favor of having a "private judge" hear their dispute. Put differently, they ostensibly intrude upon the judiciary's monopoly over dispute resolution. Granite Rock Co. v. Int'l Bhd. Of Teamsters, 561 U.S. 287, 299 (2010). But they do not invade the courts' monopolies over (1) enforcing judgments or (2) proclaiming what the law is. Binding arbitration awards, and the contracts resulting from arbitrated or mediated settlements, only become enforceable judgments if confirmed by a court, 9 U.S.C. Sections 9, 13; Civ. Proc. Code Sections 1285, 1287.4, or if a court (or a jury) determines a settlement agreement was breached, e.g., Sony Computer Entertainment America, LLC v. HannStar Display Corp., 835 F.3d 1155, 1157-58 (9th Cir. 2016); Simmons v. Ghaderi, 44 Cal. 4th 570, 574, 576 (2008). And arbitrators and mediators don't make precedent.

The courts were initially quite hostile to these alternative dispute resolution mechanisms muscling in on their theretofore exclusive territory. E.g., Scherk v. Alberto-Culver Co., 417 U.S. 506, 510-11 & n.4 (1974). But the legislatures flexed their monopoly power to enact laws. Congress passed the Federal Arbitration Act (FAA) in 1947 to declare arbitration provisions in contracts involving interstate commerce "valid, irrevocable, and enforceable" unless the contract itself is invalid under a generally applicable "grounds ... for the revocation of any contract." 9 U.S.C. Section 2. And the California Legislature passed the California Arbitration Act in 1961, echoing the FAA's endorsement of arbitration. Civ. Proc. Code Section 1280 et seq.

The technology of the 21st century now presents a further threat to the courts' monopoly.

As critical as judges are to the courts' dispute-resolution function, juries are even moreso. As the Federalist Papers themselves urged, because a judge as the sole decision-maker can be biased, bribed, blackmailed or just plain eccentric, "trial by jury" functions as "a valuable check upon [such] corruption" or whimsy by having the jury supplant (or, at a minimum, supplement) the decision-making role of judges. Federalist No. 83 (Alexander Hamilton); see also Duncan v. Louisiana, 391 U.S. 145, 156 (1968). This is no doubt why the right to a jury trial in civil and criminal cases is enshrined in the federal and California Constitutions and why it is lauded as essential to our system of civil and criminal justice. U.S. Const., amends. VI and VII; Cal. Const., art. I, Section 16; Duncan at 149; Williams v. Florida, 399 U.S. 78, 100 (1970).

Thanks to the internet, however, prospective litigants now have the additional option of "opting out" of dispute resolution by jury trial in favor of presenting their dispute to the internet community; in other words, they can now "crowdsource" their dispute.

So-called "Crowdsourced Online Dispute Resolution" mechanisms are already here. For just $14.99, PeopleClaim.com allows an aggrieved party to post a complaint online, where internet users can offer potential solutions to resolving the dispute or "upvote" the solutions suggested by others. How does this facilitate dispute resolution? According to PeopleClaim.com's website, a party's failure to respond to a claim or its refusal to resolve the claim to the poster's satisfaction will "remain online and [b]e available to search engine queries" and will affect that party's "reliability rating." "Businesses [that] manage their online reputation," the website goes on to explain, will have a "powerful and ongoing incentive for resolution." iCourthouse.com provides a platform for parties to present their opposing sides of a dispute for "public" comment and vote for a window of time, and encourages them to agree in advance to treat the crowdsourced "verdict" as binding.

At first blush, crowdsourcing a decision online is not all that different from asking a jury for its verdict. After all, a jury relies upon "community participation" and its verdict ideally reflects "the common sense judgment of a group of laymen." Williams at 100. In theory, so does crowdsourcing.

But there do appear to be at least two notable differences between a traditional jury and a crowdsourced "jury."

The composition of a traditional jury is highly regulated. Courts are required to draw a jury venire from a cross-section of the community and the parties have the chance to look the jurors in the eye, to question them, and bump them for cause or for any reason but an unconstitutional one. Taylor v. Louisiana, 419 U.S. 522, 538 (1975); People v. Lewis, 25 Cal. 4th 610, 634 (2001); Batson v. Kentucky, 476 U.S. 79 (1986); People v. Wheeler, 22 Cal. 3d 258 (1978). The composition of a crowdsourced "jury" is far less regulated: Other than signing up for an account on these websites, the "jury's" members are anonymous, which means they are not drawn from a cross-section and, worse yet, can be people with an interest in the dispute or who are skewing the tally by voting multiple times. And, lest we forget, the internet is home to the people who created the Flying Spaghetti Monster.

The information a traditional jury sees when making its decision is also highly regulated. Courts have an entire body of law -- evidence -- dictating what a jury can and can't see. The internet does not.

The development and use of these low-cost, less regulated, and thus potentially less "fair" alternatives to traditional juries raises a far more fundamental question: Are the courts facing further erosion of their monopoly over dispute resolution because the judicial forum is inadequate?

Could it be the very aspects of civil court proceedings that make them more fair also put them out of the practical reach of sizable segments of our society? Court proceedings are steeped in the rules of civil procedure and evidence, and these straits are more easily navigated with a lawyer. But lawyers cost money, and the empirical evidence seems to suggest they may often be too expensive for many litigants. A 2015 study from the National Center for State Courts, for example, documented that 76% of civil cases involved at least one self-represented litigant. See NCSC Civil Litigation Project, "The Landscape of Civil Litigation in State Courts" (2015), at pp. iv, v.

This reality presents two questions.

First, should the courts care? Is the emergence of more alternative dispute-resolution like having more entrees on a menu or more like having a sixth sushi restaurant on a block? More entrees is a good thing, but more restaurants could be bad news for one or more of the restauranteurs. Where, as here, one of the "restaurants" was created to serve the entire population, diners choosing to dine elsewhere may be a cause for concern.

Second, what, if anything, can and should the courts try to do? Is the solution to make lawyers more readily available to all litigants? Or to streamline court procedures to make them simpler for self-represented litigants, thereby leveling the playing field when one party has a lawyer and the other does not? Or to encourage the development of non-court alternatives that more closely approximate the fairness of dispute resolution proceedings in the courts?

Answering the second question is far beyond the scope of this article, but the Federalist Papers' advice about how to proceed in answering it is just as true now as it was more than two centuries ago: "The best judges of the matter will be ... the most ready to admit that the changes which are continually happening in the affairs of society may render a different mode of determining ... cases ..." Federalist No. 83 (Alexander Hamilton). 