Gaming Justice: The Decentralization of Dispute Resolution

9 January 2022

Introduction

Times have changed. This is particularly true in the area of global trade. Technology has advanced, borders are blurred, and a culture of consumerism pervades. In 2020 alone, 82% of Canadians shopped online spending a total of $84.4 billion.[1] It is estimated that 3 – 5% of all transactions made over the internet involve disputes.[2] Given our global transactional architecture, resolving these will require “fundamentally rethinking justice from a first principles perspective”.[3]

For over twenty years, the Organisation for Economic Co-operation and Development has advocated for innovative use of technology to support alternative dispute resolution for consumer level cross-border e-commerce.[4] In particular they recommend that “[c]onsumers should be provided with meaningful access to fair, easy-to-use, transparent and effective mechanisms to resolve domestic and cross-border e-commerce disputes in a timely manner and obtain redress, as appropriate, without incurring unnecessary cost or burden”[5] and that Online Dispute Resolution (ODR) should be used “to facilitate the resolution of claims over e-commerce transactions, with special attention to low value or cross-border transactions”.[6]

Our current court system is slow and costly taking it out of reach for most. Some believe that the creation of new private “spontaneous lawmaking” may be the answer.[7] In fact, there has been a growing trend towards using online mechanisms for dispute resolution using decentralized digitized technology. The big question is whether this type of dispute resolution is consistent with the notion of fairness. This brief paper focuses on the resolution of disputes using blockchain technology by reviewing the academic literature in this area. This essay suggests that a cautious approach may be appropriate to allow for the refinement of technology with social progress. This paper does not try to provide answers but attempts to lay a foundation for thought, ideas, and collaboration for ODR in our digital and global times.

In the spirit of the “fourth party” represented by technology in the dispute resolution process,[8] this essay unfolds in four parts: Part One offers an overview of the dispute resolution framework within the justice space; Part Two unpacks the mysteries of decentralization as it applies to the ODR space; Part Three features an analysis of planned and current decentralized dispute resolution solutions; while Part Four wraps up with some concluding remarks urging for greater refinement for future development.

1.     Dispute Resolution

The resolution of disputes is foundational to an organized society. Etymologically, “justice” derives from the Latin jus meaning “a right”[9] or “that which is just”.[10] The Rule of Law as included within the Preamble of the Canadian Charter of Rights and Freedoms,[11] factors highly, albeit somewhat inconsistently, largely oscillating between an Aristotelian rule of reason approach and a Montesquieu version where it is required to guard against government oppression.[12] In more commonplace terms, it can be thought of as the requirement that all people are treated equally. Access to justice is fundamental to the Rule of Law and protected by the Canadian constitution.[13] This can be interpreted to mean that there is a right to have decisions decided affordably and without delay.

It is common knowledge that the traditional court system for resolving disputes is rife with problems imposing barriers to access to justice. Courts are slow and costly ending in settlement in most cases.[14] Shannon Salter, a pioneer in the development of centralized ODR, calls for a “[u]ser-centric approach which puts the public first”[15] in a way that balances “the needs of justice and the needs of the public.[16]

Richard Susskind, a leading authority in the area of dispute resolution, suggests that ODR can include just about any type of dispute resolution mechanism facilitated online.[17] Colin Rule envisions ODR as a “radical experiment: …a new global online society… built with electrons instead of bricks – enabling us to transcend time and space while connecting everyone, all the time”.[18] The cross-border e-commerce space is especially ripe for assistance for resolving disputes online. Jurisdictional issues and low-value trade make court intervention prohibitive and provides a reason behind the growing popularity of ODR.[19] 

Private ODR systems are not bound by the constraints of the common law and free to devise their own rules.[20] Clearly, the millions of disputes resolved through private enterprise systems such as eBay and Alibaba, suggest that “government and courts were not viable options and that innovative use of the new technologies can respond effectively to disputes”.[21] The transformative potential of any dispute resolution system is realized once user needs are responsively met and problems can be solved quickly, efficiently and fairly.

2.     Decentralized Disputes

The common law is constructed on the notion of precedence.[22] This can seem like repeating the same problems ad nauseum. For Susan Ursel, building better law with a focus on access to justice requires the adoption of a (social) “innovation mindset” supported by “designerly thinking”.[23] Simply put, “[w]e need to create something different, and, to do that, we need to think about the problems differently”.[24] The thought of disgorging ourselves from the safety of archaic contract law technicalities may seem outrageous and potentially downright dangerous but history suggests otherwise.

As far back as medieval times, the organization of law began in response to the decentralization of trade. When trade expanded beyond domestic reaches, it was the merchants themselves through their universal customs who created the “Law of Nations”.[25] These customs became known as Lex Mercatoria and were universally applied and enforced through merchant courts.[26] This transformation has been compared to that of the rise of international arbitration in the last half of the twentieth century.[27] Indeed, similarities continue with the online self-regulation that is going on. Primavera de Filippi in fact coined the term Lex Informatica to make explicit the comparison between the universal customs of the medieval traders and that of the self-regulation of informational transactions over the internet.[28]  All of these types of merchant practices were designed to “reflect the customs, usages, and practices of the parties”[29] and derived through a decentralized process of norm creation.

Blockchain Technology

Blockchain technology is what supports a decentralized online framework. Basically, blockchain technology is made up of blocks of immutable data that are chained securely together using cryptographic principles.[30] It is described as a distributed ledger because each record can be independently verified and stored on separate nodes throughout the network.[31]  The alleged mastermind behind this technology, describes the blockchain process as “a chain of electronic signatures”.[32] Collectively, each transaction is recorded in sequential order along with a software identifier that must correspond to the previous data with the ledger updating only once it is verified by a majority of the nodes.[33] The network must then reach a consensus about the authenticity of the transaction before it is added to the chain of blocks.[34]

While user identities remain private,[35] public blockchains can be read by anyone and altered through a consensus process of validation.[36] Because multiple copies of the data are stored on the various nodes on the network and changes require verification with the other nodes, it is “[t]he decentralized, fully distributed nature of the blockchain [that] makes it practically impossible to reverse, alter, or erase information contained in it”.[37] Because changing the data requires altering the data on every node separately at the same time, this technology is considered rather safe.[38]

Originally designed to facilitate the transfer and use of a digital currency called bitcoins, blockchain technology has expanded to various other types of currency and transactional systems.[39] In fact, because cryptocurrency is not backed by commodities or used by a legal structure or convention, blockchain technology can be used to “create and enforce property rights”.[40] Given that blockchains are based on peer-to-peer system based on “cryptographic proof of trust”, a third-party mediary or server-based system is unnecessary.[41]

Smart Contracts

The concept of smart contracts was conceived in the mid-1990s by Nick Szabo as a vending machine type of technology.[42] Once a token is deposited, the machinery is activated and executes without assistance. Smart contracts are essentially “decentralized agreements built in computer code and stored on a blockchain”.[43]  Blockchains are what puts the “smart” into “contracts” and allows them to be self-executing and self-enforcing.[44] Unique terms, including agreement regarding dispute resolution, can be included in a smart contract.

Being housed on the blockchain allows smart contracts to benefit from its tenets of “verifiability, reliability, and security”.[45] Once a smart contract is “hosted and executed” on such a system, it cannot be changed and runs as programmed. Self-execution mechanisms can assist as a private enforcement mechanism.[46] This process can be fully automated requiring no additional third-party or server assistance and can also include conditional terms as part of the agreement algorithm. For example, where a conditional escrow mechanism is built into the smart contract it can prompt the agreement to pause while dispute resolution takes place. This is one of the ways that PayPal ensures compliance with deals made over their system. Until a buyer ensures that the product they receive is what was ordered, PayPal holds their money in escrow.[47]

Veijo Heiskanen points out that “international consumer transactions entered via the Internet lack a natural geographical centre of gravity — there is no identifiable ‘place’ where the contract was entered into – there is no factual ground that would allow the allocation of jurisdiction in an objective manner”.[48] This, Heiskanen suggests, creates difficulties with the regulation of cross-border transactions.[49] ODR however, eliminates this problem through the voluntary agreement of the parties. Although smart contracts, as with standard contracts, may require the assistance of the court to resolve issues, the true value of smart contracts is in their ability to avoid this avenue by agreement. By integrating ODR within the framework of the smart contract algorithm, cost can be minimized, jurisdictional issues alleviated, and efficiency enhanced.

3.     Decentralized Solutions

The novelty of a blockchain-based system is in its decentralization. Historically, ODR platforms such as private companies like eBay or Alibaba and court-based ones like British Columbia’s Civil Resolution Tribunal were established and functioned through a centralized system. ODR that is blockchain-based is dispersed throughout a worldwide network of participants who interact with the process through decentralized applications (dApps). The goal of this decentralization is the quick, cheap, and fair resolution of disputes.[50]

While ODR based on blockchain technology is still in its developing stages, when it is included in the smart contract, its process can be semi-automated requiring some human intervention or fully automated. Some are convinced that this process can unleash the potential for “[a] fast, inexpensive, transparent and decentralised claim adjudication system [that] will be… key… for the Internet Age”.[51]

Game Theory

There is currently a growing interest in the development of ODR dApps. Kleros,[52] Jur,[53] and Rhubarb[54] are all designed to provide decentralized solutions for ODR. Although an in-depth analysis of these systems is beyond the reach of this short paper, they essentially operate through a decentralized meritocratic system with tokenomics and game theory forming the basis for the resolution of disputes.[55]

Generally, jurors are selected somewhat randomly, able to review evidence that is submitted by parties, and incentivized through a consensus-based pay-off. Voting with the majority merits a pay-off, while voting for the minority results in the sanction of the juror losing their stake. It is a game and the goal is to win by siding with the popular vote. Because the consensus win is largely predicated on a strategic assessment of norms, this type of dispute resolution may be inconsistent with how some would define justice or fairness. Herein lies the weak link of the decentralized ODR chain.

Game theory was elevated to a field of study by John von Neumann almost a century ago.[56] Defined as “a set of tools and a language for describing and predicting strategic behavior”,[57] it is part of a theory of bargaining where agreement is expected to be reached by maximizing profits subject to restraints.[58] It is rooted in the assumption that bargaining is being done by fully informed actors who behave rationally and for the purposes of utility.[59]

As part of game theory, Thomas Schelling developed the idea of a Schelling point as the “concert[ed] intentions or expectations with others if each knows that the other is trying to do the same”.[60] It is a focal point that is and normatively imbued into what one is inclined to think “ought” to follow from the context. Norms, as the building blocks of decentralized justice, are essentially “ought” statements.[61] In the words of Joseph Raz, “[n]ormative theory is primarily concerned with establishing what people ought to do”.[62] It is not an absolute imperative nor is it based on anything more than a gut feeling. Very much the antithesis of how matters are structured to proceed according to rules of evidence in a common law court system.

Dale Stahl and Paul Wilson describe the normative process as formulating prior models and choosing the best response.[63]  Essentially, it is simply a prediction about what others will do based on a Rational Economic man.[64] Given that individuals can arrive at the game with different norms or priors,[65] this hypothetical man is suspect at best. Roth & Schoumaker suggest that even where all participants are fully informed and work to maximize utility in making strategic decisions, players exercise their beliefs subjectively[66] and expectation of a payoff can influence their decision.[67]

Eric Posner would have us convinced that it is our norms that signal that we are team players.[68] However Bryan Druzin suggests that not all norms are the product of rational choice when considered within an emotional context.[69] Once internalized they can generate action based in obligation rather than pure self-interest.[70] Most notable is that norms can have an irrational basis such as fear of another race that develop racist norms,[71] their content is culturally defined[72] and they are internalized at varying degrees.[73]

Incentive to coordinate choices springs from a mutual interest to cooperate. Players are compelled to adhere to a focal point by convention. Conformity to norms is out of self-interest of a pay-off. Based on the model of collective enforcement by Gillian Hadfield and Barry Weingast, norms permit “public and impersonal” reasoning by “coordinating individual expectations” for the purpose of the incentive or to avoid the sanction of being left out.[74] Although, Schelling describes this as the “honest” decision, the goal is actually to vote according to what is strategically considered to be the popular choice and not necessarily the “right” choice.

4.     Devolving Forward

Almost a decade ago, Julie Macfarlane noted the popularity of ADR[75] with Trevor Farrow declaring that “[e]veryone is getting on board the A-train”.[76] Today, it is clear that we are now traveling on the O-line towards Online Dispute Revolutionville!

To be effective, ODR must be quick, inexpensive and fair. When compared with traditional forms of dispute resolution, ODR on blockchain platforms are comparatively quick and cheap. This is of particular advantage for low-value claims. However, this comes replete with risks that may not justify the limited reward. The big question is whether new mechanisms operated through a decentralized system can “efficiently provide legal certainty in the absence of centralized lawmaking institutions”.[77]

Sara Hourani points out that while blockchain technology is safe, it is not completely secure[78] and cites privacy concerns related to data collection and storage on the blockchain suggesting that “if the data is not secure, there can be no guarantee of confidentiality for the arbitration proceedings”.[79] Additionally, the seemingly beneficial immutability of blockchain technology can become problematic when coding is committed in error or becomes the subject of an electronic virus.[80] James Metzger questions the fairness of such decisions and suggests that there are “few guarantees that the Schelling Point can guarantee something other than an arbitrary, even if coherent, result”.[81]

It may be however, that the biggest barrier to access to justice is ultimately the enforceability of such agreements. Although legitimacy is bestowed on the process through voluntary buy-in when making the initial agreement and rooted in the principles of freedom to contract and alienation of property, parties who are not satisfied with the outcome may indeed proceed to challenge such promises in court. The ultimate question about “who decides” remains undecided. Will power to organize justice and solve problems come from decentralized users or from centralized regulation and rules? This journey through justice is a long and winding one warranting ongoing input from all.

Conclusion

This paper has reviewed the viability of a decentralized framework to support ODR solutions for global e-commerce activity. Game theory in particular has been identified as a weak link in the ODR process. Intended to stimulate thought and ideas, this paper urges continued reflection and discussion on this topic.


[1] Statistics Canada, “Online shopping by Canadians in 2020: Results from the Canadian Internet Use Survey” (22 June 2021) online: < https://www150.statcan.gc.ca/n1/pub/11-627-m/11-627-m2021048-eng.htm>.

[2] Ethan Katsh & Orna Rabinovich-Einy, “Digital Justice” (2017) [Katsh & Rabinovich-Einy] in Federico Ast, “Dispute Revolution” (2020) online: < https://kleros.io/book.pdf> at 67 [Ast].

[3] Ast, supra note 2 at 26.

[4] OECD, “Digital Economy Policy Legal Instruments: Consumer Protection in E-commerce” (2016) online: < https://www.oecd.org/sti/consumer/ECommerce-Recommendation-2016.pdf> [OECD].

[5] OECD, supra note 4 at 16.

[6] OECD, supra note 4 at 17.

[7] Daniele Bertolini, “On the Spontaneous Emergence of Private Law” (2016) 1 Can JL & Juris 5 – 36 at para 1.

[8] Jagruti Chauhan, “Online Dispute Resolution Systems: Exploring E-Commerce and ESecurities” 15 WRLSI 99 at 101 citing Ethan Katsh and Janet Rifkin, Online Dispute Resolution: Resolving Conflicts in Cyberspace, (San Francisco: Jossey-Bass, 2001) at 93 [Katch & Rifkin].

[9] Jason Boatright, “The History, Meaning, and Use of the Words Justice and Judge” (2018) 49 St. Mary’s LJ 727 at 732 [Boatright] citing Francis Edward Jackson Valpy, An Etymological Dictionary of The Latin Language (1838) at 213.

[10] Boatright, supra note 9 citing Charlton T Lewis, ed, A Latin Dictionary (1998) at 1019 – 1020.

[11] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[12] Judith Shklar, “Political Theory and the Rule of Law” in Allan Hutchinson & Patrick J. Monahan, eds, The rule of law: Ideal or Ideology, (Toronto: Carswell, 1987).

[13] Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59 (CanLII), [2014] 3 SCR 31 at para 39.

[14] Trevor CW Farrow “Civil Justice and Civil Justice Reform Dispute Resolution, Access to Civil Justice and Legal Education” (2005) 42 Alta L Rev 741 – 801 at para 12 [Farrow] referencing Julie Macfarlane, “Why Do People Settle?” (2001) 46 McGill LJ 663 at 665.

[15] Shannon Salter & Darin Thompson, “Public-Centred Civil Justice Redesign: a case study of the British Columbia Civil Resolution Tribunal” (2016-2017) 3 MJDR 113 – 136 at 45 [Salter & Thompson].

[16] Salter & Thompson, supra note 15 at 50.

[17] Shannon Salter, “Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal” (2017) 34 Windsor YB Access Just 112 at 113 [Salter] referencing Richard Susskind, “Foreward” in Mohamed S Abdel Wahab et al, eds, Online Dispute Resolution: Theory and Practice – a Treatise on Technology and Dispute Resolution (The Hague, Netherlands: Eleven International Publishing, 2012) [Wahab].

[18] Colin Rule, “Building a Justice System for the Internet” in Ast, supra note 2 at 18.

[19] Maxime Hanriot, “Online Dispute Resolution (ODR) As a Solution to Cross Border Consumer Disputes: The Enforcement of Outcomes” (2015 – 1016) 2 MJDR 1 – 22 at para 1 referencing Ethan Katsh, “ODR: A Look at History — A Few Thoughts About the Present and Some Speculation About the Future” in Wahab, supra note 17.

[20] Salter, supra note 17 at 117.

[21] Emily B Laidlaw, “Reforming Defamation Law in the Age of the Internet Re-Imagining Resolution of Online Defamation Disputes” (2018) 56 Osgoode Hall LJ 162 – 202 at para 3.

[22] Susan Ursel, “Building Better Law: How Design Thinking Can Help Us Be Better Lawyers, Meet New Challenges, and Create the Future of Law” (2017) 34 Windsor YB Access Just 28 at 32 referencing Mark Szabo, “Design Thinking in Legal Practice Management” (2010) 21:3 Design Management Review at 44.

[23] Ursel, supra note 22 at 31.

[24] Ursel, supra note 22 at 36.

[25] Leon E Trakman, “From the Medieval Law Merchant to E-Merchant Law” (2003) 53 Univ of Toronto LJ 265 at 265 – 266 [Trakman] referencing PW Thayer, “Comparative Law and the Law Merchant” (1936) 6 Brook LRev 139 at 141.

[26] Primavera de Filippi, “From Lex Mercatoria to Lex Criptographia” [de Filippi] in Ast, supra note 2 at 23.

[27] Bertolini, supra note 7 at para 65.

[28] De Filippi, supra note 26 at 23.

[29] Trakman, supra note 25 at 266.

[30] James Metzger, “The Current Landscape of Blockchain-based Crowdsourced Arbitration” (2019) 19 Macquarie LJ 81 at 83 [Metzger 2019] referencing Max Raskin, “The Law and Legality of Smart Contracts” (2017) 1:2 Georgetown Technology Law Review 305 at 318.

[31] Ibid; Luesley, supra note 31 at para 2 [Luesley] referencing Dirk A Zetzsche, Ross P Buckley & Douglas W Arner, “The Distributed Liability of Distributed Ledgers: Legal Risks of Blockchain” (2017) 2018 Univ Ill Law Rev 1361.

[32] Brianna Bogucki, “Buying Votes in the 21st Century: The Potential Use of Bitcoins and Blockchain Technology in Electronic Voting Reform” (2017) 17 Asper Rev Int’l Bus & Trade L 59 – 84 at para 9 [Bogucki] citing Satoshi Nakamoto, “Bitcoin: A Peer-to-Peer Electronic Cash System”, (2008) online: <https://bitcoin.org/bitcoin.pdf> at 2 [Nakamoto].

[33] Bogucki, supra note 32 at para 8.

[34] Sara Hourani, “Access to Justice and Blockchain-Based Arbitration: New platforms could be a useful tool for resolving commercial disputes” (2020) 26:2 Disp Resol Mag 20 at 20 – 21 [Hourani].

[35] Metzger 2019, supra note 30 at 84 referencing Wulf Kaal and Craig Calcaterra, “Crypto Transaction Dispute Resolution” (2017) 73:1 Business Lawyerat 109, 114 [Kaal & Calcaterra].

[36] Metzger 2019, supra note 30 at 84 referencing Vitalik Buterin, “On Public and Private Blockchains” (6 August 2015) <https://ethereum.github.io/blog/2015/08/07/on-public-and-private-blockchains/>; Bogucki, supra note 32 at para 8.

[37] Metzger 2019, supra note 30 at 84 citing Kaal & Calcaterra, supra note 35 at 115.

[38] Bogucki, supra note 32 at para 14.

[39] Bogucki, supra note 32 at para 4.

[40] Bogucki, supra note 32 at para 4 referencing Michael Abramowicz, “Cryptocurrency-Based Law” (2016) 58 Ariz L Rev 359 at 361.

[41] Bogucki, supra note 32 at para 7 referencing Nakamoto, supra note 32 at 1.

[42] Kate Sills, “The Promise of Smart Contracts” [Sills] in Ast, supra note 2 at 251.

[43] Luesley, supra note 31 at para 1 citing Jeremy M Sklaroff, “Smart Contracts and the Cost of Inflexibility” (2017) 166:1 Penn L Rev at 263.

[44] Luesley, supra note 31 at para 1 referencing Alexander Savelyev, “Contract law 2.0: Smart Contracts as the Beginning of the End of Classic Contract Law” (2017) 26:2 Inf Commun Technol Law 116.

[45] James Metzger, “Can the Blockchain Decentralize Dispute Resolution?” (2020) 26:2 Disp Resol Mag 15 at 16 [Metzger].

[46] Hanriot, supra note 19 at para 52.

[47] Hanriot, supra note 19 at para 53.

[48] Chauhan, supra note 8 at 104 citing Veijo Heiskanen, “Dispute Resolution in International Electronic Commerce” (1999) 16:4 J Int’l Arb 29 at 35.

[49] Chauhan, supra note 8 at 104 referencing Heiskanen, supra note 48 at 36.

[50] Metzger 2019, supra note 30 at 82.

[51] Metzger 2019, supra note 30 at 82 citing Ast, supra note 2.

[52] Kleros, “The Justice Protocol” online: < https://kleros.io/> (For a more in-depth analysis of Kleros, see Ast, supra note 2).

[53] Jur, “Justice Decentralized” online: < https://jur.io/> (For a more in-depth analysis of Jur, see online: <https://jur.io/wp-content/uploads/2019/05/jur-whitepaper-v.2.0.2.pdf>).

[54] Rhubarb, “Get the collective wisdom of people who know” online: > https://www.rhucoin.com/> (For a more in-depth analysis of Rhubarb, see online: <https://www.rhucoin.com/rhubarb-at-a-glance.aspx#:~:text=Rhubarb’s%20blockchain%20technology%2C%20RDCM%20(Rapid,and%20speeds%20up%20decision%2Dmaking.&text=Our%20RDCM%20system%20is%20based,than%20traditional%20courts%20or%20juries.>).

[55] See generally, Jur Whitepaper, supra note 53 at 9.

[56] John von Neumann, “On the Theory of Games of Strategy” (1928) 100:1 Mathematical Annals 295 – 320.

[57] Randal C Picker, “An Introduction to Game Theory and the Law” (Coase-Sandor Institute for Law & Economics Working Paper No. 22, 1994) at 2 [Picker].

[58] Picker, supra note 57 at 2.

[59] Alvin E Roth & Francoise Schoumaker, “Expectations and Reputations in Bargaining: An Experimental Study” (1983) 73:3 The American Economic Review at 362; Picker, supra note 57 at 9 – 10.

[60] Thomas Schelling, The Strategy of Conflict (Cambridge: Harvard University Press: 1960) at 57 [Schelling].

[61] Lawrence E Mitchell, “Understanding Norms” (1999) 49 Univ of Toronto LJ 177 at 180 [Mitchell].

[62] Mitchell, supra note 61 at 182 citing Joseph Raz, Practical Reason and Norms (Princeton, NJ: Princeton University Press, 1990) at 11.

[63] Dale O Stahl & Paul W Wilson, “On Players’ Models of Other Players: Theory and Experimental Evidence” (1995) Games and Economic Behavior 10, 218 – 254 at 220 online: <http://www.dklevine.com/archive/refs4542.pdf>.

[64] Mitchell, supra note 61 at 196.

[65] Roth & Schoumaker, supra note 59 at 362 referencing Alvin E Roth & Michael W K Malouf, “Game Theoretic Models and the Role of Information in Bargaining” (1979) 86 Psychological Review 574 – 94.

[66] Roth & Schoumaker, supra note 59 at 365.

[67] Roth & Schoumaker, supra note 59 at 371.

[68] Bryan Druzin, “Law, Selfishness, and Signals: An Expansion of Posner’s Signaling Theory of Social Norms” (2011) 24 Can. J.L. & Juris. 5 – 53 at para 2 [Druzin] referencing Eric A. Posner, Law and Social Norms (Cambridge, MA: Harvard University Press, 2000) at 24 – 25.

[69] Druzin, supra note 68 at para 4.

[70] Druzin, supra note 68 at para 16.

[71] Druzin, supra note 68 at para 26 referencing L Mealey, “The Sociobiology of Sociopathy: An Integrated Evolutionary Model” in Simon Baron-Cohen, ed., The Maladapted Mind: Classic Readings in Evolutionary Psychopathology (East Sussex, UK: Psychology Press, 1997) at 170.

[72] Druzin, supra note 68 at para 44 referencing Chandra Sekjar Sripada & Stephen Stich, “A Framework for the Psychology of Norms” in Peter Carruthers, Stephen Laurence & Stephen P Stich, eds, The Innate Mind: Culture and Cognition (Oxford: Oxford University Press, 2007) at 282.

[73] Druzin, supra note 68 at 68 EE Jones, HH Wells & R Torrey, “Some Effects of Feedback from the Experimenter on Conformity Behaviour” (1958) 57 J Abnormal and Social Psychology 207.

[74] Bertolini, supra note 7 at para 44 referencing Gillian K Hadfield & Barry R Weingast, “What is Law? A Coordination Model of the Characteristics of Legal Order” (2012) 4:2 J Legal Analysis 471 at 473.

[75] Julie Macfarlane et al, eds, Dispute Resolution: Readings and Case Studies, 2d ed. (Toronto: Emond Montgomery, 2003).

[76] Trevor Farrow, “Book Review: Julie Macfarlane et al, Thinking About Dispute Resolution: Readings and Case Studies, 2d ed (Toronto: Emond Montgomery, 2003)” (2003) 41 Alta L Rev 559 – 566 at para 1.

[77] Bertolini, supra note 7 at para 1 referencing Gunther Teubner, ed, Global Law Without a State (Aldershot: Dartmouth, 1997); Stewart Macaulay, “Relational Contract Theory: Floating on a Sea of Custom? Thoughts About the Ideas of Ian Macneil and Lisa Bernstein” (2000) 94:3 NW U L Rev 775.

[78] Hourani, supra note 34 at 21.

[79] Hourani, supra note 34 at 21.

[80] Hourani, supra note 34 at 21 – 22.

[81] Metzger, supra note 45 at 19.