Private litigation has a prominent place in modern America. For plaintiffs in particular, however, it is probably inaccurate to say that Americans like to litigate. The process of litigating a claim for relief is generally drawn-out, costly, and unsatisfying for parties that file suit. It is no wonder then that legal commentators often speculate as to potential alternative avenues for relief
This paper contends that social media might represent such an alternative. Although the technology is still in its relative infancy, social media has already had a transformative impact on the relationship between disaffected individuals and one-time defendants. The ability of individuals to voice their complaints on a platform that is easily accessible and broadly impactful has given new strength to allegations of indignity and injustice. And because social media campaigns threaten the very reputation upon which modern corporations depend, these efforts are generating a response from their targets in a way that single suits for relief rarely can.
While it is unlikely that plaintiffs or legal commentators will decide to abandon the litigation avenue any time soon, the aim of this paper is to present both groups with an emerging alternative for consideration. By exploring the impact of social media campaigns on two areas of law in which litigation has long been deemed invaluable, this paper seeks to demonstrate that the Internet might soon overhaul the way we think about legal rights and legal remedies.
INTRODUCTION I. THE ROLES OF LITIGATION AND SOCIAL MEDIA IN SOCIETY A. Civil Litigation B. Social Media 1. What is Social Media? 2. How Does Social Media Advance Individual and Collective Interests? i. Dell Hell ii. United Breaks Guitars 3. Why Do These Companies Care About Social Media Campaigns? II. SOCIAL MEDIA STRATEGIES AS AN ALTERNATIVE TO LEGAL REMEDIES A. Consumer Protection 1. The General Architecture of Consumer Protection Law 2. Present and Potential Strategies for Securing Consumer Protections i. Why Do Traditional Consumer Protection Strategies Fail to Protect Most Consumers? ii. Social Media is an Alternative Avenue for Consumer Protection B. Employment Discrimination 1. How Effective Are Existing Legal Channels in Resolving Individuals' Employment Discrimination Claims? 2. Do Social Media Campaigns Present a Viable Alternative Path of Relief for Victims of Employment Discrimination? CONCLUSION INTRODUCTION
Every day in this country, thousands of people go public with allegations of wrongdoing. These allegations generally spotlight conduct that caused a perceived injury and an actor alleged to be responsible for that injury. Frequently, the allegations are accompanied by an explicit request for remedy. In many ways, these allegations closely track the components of a traditional legal complaint. A full decade into the twenty-first century, however, such claims are increasingly put forth not in a court of law, but instead in the court of public opinion. Driven largely by advances in technology, one-time plaintiffs now publicize harms and pursue remedies without ever appearing before a judge or jury. For individuals who believe that they have been wrongly harmed, producing a negative YouTube video or coordinating a critical blogging campaign increasingly appears as an attractive alternative to an extended battle for legal relief. Not only do social media strategies allow citizens to avoid the costs and delays that generally accompany litigation, they also appear to be getting the attention of major corporate defendants in a way that isolated private suits are rarely able to do.
This paper reflects on the role of litigation in an age in which the channels of social media often provide citizens with the most realistic and direct avenue for remedying perceived wrongs. In particular, the paper analyzes the extent to which online social media technologies can supplement or supplant traditional avenues for attaining legal relief. The underlying question that the paper seeks to address is this: if citizens no longer had access to litigation as a vehicle for remedying perceived wrongdoing, would online social media technologies nonetheless make it possible for these individuals to make themselves whole?
The paper proceeds in two main parts. Part I provides a general look at the place of litigation and social media in society. After considering the prominent role of litigation in structuring modern America, this section will question litigation's effectiveness in securing relief for disaffected plaintiffs. The second part of the section outlines the emerging power of the Internet and the particular force of social media channels such as Facebook, Twitter, YouTube and the blogosphere. This section argues that social media has provided both established groups and isolated individuals a powerful weapon in their efforts to vindicate particular interests. Because major corporate entities--the frequent adversaries in many of these contexts--are increasingly concerned with threats to their reputation, negative web-based campaigns have emerged as a viable mechanism for pressuring one-time defendants to change their existing practices.
Part II considers social media campaigns as an alternative to private litigation. This section argues that the general empowerment of disaffected individuals through social media has implications for our evaluation of existing legal rights and remedies. In order to illustrate this claim, this section considers the comparative benefit of social media strategies in two areas where litigation has traditionally been a dominant remedy: consumer protection law and employment discrimination. In the context of consumer protection, this analysis involves identifying a number of ways in which the Internet is already overhauling the relationship between consumers and corporations. With respect to employment discrimination claims on the other hand, a more speculative but no less impactful role for social media campaigns is considered.
THE ROLES OF LITIGATION AND SOCIAL MEDIA 1N SOCIETY
To stake out a claim regarding the frequency of private lawsuits in the United States is to invite controversy. Individuals in the legal community and beyond often disagree sharply regarding the frequency of these suits, both overall and relative to previous periods in American history. On one side are those who contend that the United States is witnessing a litigation explosion. Advocates of this position cite the widening scope of subjects for litigation and the seemingly unending presence of frivolous suits as evidence for their position. (1) On the other hand are those who contend that the litigation explosion is a myth and that few individuals actually take their claims to court. (2) For advocates of this position, the real problem with modern civil litigation is that it too often fails to compensate individuals with meritorious claims. (3)
One need not come down on any particular side of this debate, however, in order to appreciate a claim that is more frequently agreed upon: the United States is a uniquely litigious society. (4) More than any other nation, the United States depends heavily on lawyers and courts for the day-to-day operation of its society. (5) Even critics of the litigation explosion hypothesis acknowledge that litigation influences the resolution of more issues in modern America than it has in any other place and time. (6)
While many explanations have been set forth in an effort to explain this development, one interesting theory has gained particular attention. The increased dependence of modern Americans on courts, the argument goes, is explained by a breakdown in informal institutions of dispute resolution. (7) More specifically, "courts have been expected to fill the void created by the decline of church, family, and neighborhood unity." (8) According to this school of thought, "[t]he law that used to control everyday life was ... enforced almost exclusively through community control." (9) Most importantly, "[i]n a world of closely-knit communities, in which everyone knew what everyone else was up to, this kind of pressure was surprisingly effective." (10)
At a very basic level, this paper is about the emergence of an informal network of online community control that might effectively compete with the formal mechanisms for resolving disputes. In some sense, then, this paper is about the possibility that something new--the Internet--might allow us to restore something old--meaningful, informal alternatives to private civil suits. In a world of social media, the world itself has begun to shrink. (11) Information about any and every topic has become widely accessible and quickly deliverable. (12) It may be incorrect to say that we are entering a time in which "everyone knew what everyone else was up to[,]" but that fate is no longer unthinkable.
What remains to be seen is whether participants in this ever-shrinking world face the same behavioral pressures that faced members of the closely-knit communities of old. If so, then social media may come to resemble the informal institutions of yesteryear as an important competitor to the formal mechanisms of civil litigation.
In order to effectively analyze this possibility, it is first necessary to more broadly define the terms of this discussion. Before we assess how social media stacks up against civil litigation as a mechanism for organizing society, it is useful to flush out what we are talking about when we discuss litigation and social media.
Civil litigation is generally thought to advance three primary objectives: resolving disputes, compensating victims, and deterring violations of legal standards. (13) In many instances, litigation can help advance these objectives. Due to a number of reasons that are discussed below, there are many cases in which filing a lawsuit may not provide fully satisfying relief. In the...