Access justice is one of the most appealing and least contentious regulatory techniques in law’s repertoire. It aspires to give people equal opportunity to utilize certain primary goods, and it does so by assuring openness – that access to these goods is not allocated by markets and is not tilted in favor of wealth and privilege. But access justice often fails to meet its egalitarian aspirations, because groups that are not the intended targets of the intervention deploy access and its benefits disproportionately. As a result, access justice often benefits various elites, yet paid for directly by taxpayers and indirectly by weaker groups. The lecture will bring to light this unintended and regressive cross-subsidy, created by policies of access to information, compensation, insurance, accommodations, and more. It will examine in detail a specific contemporary access justice problem – consumers’ access to courts, and the impact of mandatory arbitration agreements that limit such access. Thus, the lecture will demonstrate that access to courts is a franchise of the elite and of little value to weak consumers.
Omri Ben-Shahar earned his PhD in Economics and SJD from Harvard in 1995 and his BA and LLB from the Hebrew University in 1990. Before coming to Chicago, he was the Kirkland & Ellis Professor of Law and Economics at the University of Michigan. Prior to that, he taught at Tel-Aviv University, was a member of Israel's Antitrust Court and clerked at the Supreme Court of Israel. He teaches contracts, trademark law, sales, insurance law, consumer law, e-commerce, food and drug law, law and economics, and game theory and the law. Omri Ben-Shahar writes in the fields of contract law and consumer protection, and is the co-author of More Than You Wanted to Know: The Failure of Mandated Disclosure (Princeton 2014). He is the Kearney Director of the Coase-Sandor Institute for Law and Economics, the Editor of the Journal of Legal Studies, and also the Co-Reporter for the Restatement of Law, Consumer Contracts.