Open justice against closed minds

The problem

Open justice

Open justice leads to citizens' trust

First, public access to court rulings, statistics, and budget information allow citizens to learn how the judiciary works. Suddenly, unknown and feared aspects of the law such as the process to get a divorce or the workload of judges are demystified. With a deeper knowledge of the daily activities of judges, citizens are able to see them as actual human beings instead of components of the legal bureaucratic apparatus. This humanization is key towards generating trust.

Second, transparency is thought to act as deterrent of corrupt practices. This enhances the trust of citizens, as they believe that the availability of more information will allow media to investigate and expose dishonesty. The inversed link between information and corruption has been empirically demonstrated by Brunneti & Weder with an investigation about freedom of press in 68 countries. Their results yielded a staggering prediction: if Nigeria had the same level of freedom of information as Norway, its level of corruption would match Belgium’s. As Justice Brandeis said, sunlight is the best of disinfectants.

In the other hand, Gibson & Caldeira, have shown that the mere availability of information, whether good or bad, could increase the perceived legitimacy of the judiciary. Specifically, the authors exposed how media exposure increased the perceived legitimacy of the Supreme Court. According to them, open justice helps in exposing legality symbols such as the courtroom or the gown, conveys the message that courts are impartial, and makes positive attitudes towards the judiciary salient. Moreover, open justice generates the impression of a transparent culture. This alone could reduce cheating. As shown by Köbis in an experimental setting, the participants in a “transparent environment” cheated dramatically less (230%) than the members in the “corrupt” and “neutral” scenarios.

Finally, an open justice system is expected to generate trust as it allows citizens to become active members in shaping the design of policy reform. Armed with a better understanding of the judiciary and concrete data, they are able to sharpen their demands.

The challenges of this decade

In the U.S., judicial opinions are mostly published, statistics on the behavior of courts are compiled, and detailed budget information is accessible. Even so, there is room for improvement.

To start with, not all the judicial opinions are published. For example, less than 19% of federal cases disposed on the merits were published in 2004. Also, parties are allowed to cite unreported decisions. Even if unreported decisions do not create a precedent, they provide insight on what lower courts did wrong or right.

Moreover, cases that are published do not possess the basic characteristics of open documents. Hence, attorneys are obliged to pay thousands of dollars to use services such as LexisNexis? to find cases and learn about doctrinal trends. Even cases in LexisNexis? are not easy to be downloaded in bulk. However, this entrapment of knowledge is currently being fought by the Harvard Law Library. Its project, Case Law, has digitalized more than 40 million pages of court decisions, created metadata for each volume, scanned every page, and used OCR to extract the text of every case. Moreover, it provides API and bulk data services, enabling its users to develop more applications (e.g. H20 enables law professors to create casebooks).

Finally,

work in progress

The subject of the draft and its ostensible subject are different, which should be fixed. "Open justice" and analysis of "big judicial data" have nothing to do with each other. As you point out, a system of "open justice" exists in the US, where judicial opinions are (almost entirely) published, statistics on the behavior of courts are compiled and published in the state and federal systems, and detailed budget information is publicly accessible. This does result in findings of judicial bias in all sorts of respects, which the public largely ignores and even the professionals take for granted.

Maybe the fear of big data analytics is a primary source of opposition to open justice. You so assert, without any proof. Because the two things have nothing to do with each other, I'm a little doubtful.

So far as the corrosive effect of more comprehensive data analysis of the behavior of courts is concerned, the direct "effect on my job" motivation you postulate seems unlikely. For federal judges appointed for life and state judges elected to long (in NY, 14-year) terms, this is not credible. Nor is it credible that more detailed analysis would be necessary to show which judges are inefficient: the basic statistics are constantly available and are monitored closely by the judges who supervise the judiciary. Everyone, including the kid lawyers in every courthouse, know who the efficient and inefficient judges are.

So the area of the draft that is the real subject is the extent to which data reporting on judicial systems will affect the public's level of trust in the justice system. You appear to be speculating that there are biases that can only be found through such large-data crunching that are not apparent on their face from what the public (both the professional public and the masses) already know or suspect. Why should we expect big data to prove to us more effectively than we all know already the effects of social stratification and marginalization on justice-system outcomes? Better answers on these points will make the next draft much stronger.

Open justice

From Secrecy to Data Judicial Commons

Open justice = access to justice

This realistic reflection of human decision-making has generated some backlash. Recently, France banned the publication of statistical information about judges’ decisions. Anyone who breaks the law could be punished with a sentence of up to five years in prison. On its article 33, the new French Justice Reform Act states that “the identity data of the magistrates and the members of the judiciary may not be reused with the purpose or effect of evaluating, analyzing, comparing or predicting their actual or presumed professional practices”. Hence, the French Government did not intend to stop publishing the data; just to punish its comprehension through data analytics.

The way forward: data commons

Open justice + legal analytics = more access to justice

Limits for legal analytics

Open data might give the idea that everyone will have a crystal ball through legal analytics, and thus would be able to predict the outcome of every single dispute. That is not the case. A decision pattern does not necessarily mean the judge will behave the same way every time. It could be just an influence of an unexpected personal event. Also, judicial analytics depends on the details of the data of the specific court. For example, if the record shows that a court has favoured plaintiffs, it will likely attract meritless cases. At a superficial level, this will hinder the prediction power of the data of that court.

Open justice = more access to justice

Open justice = less corruption

Definition

Open data in the judiciary resides on three principles: (1) transparency, (2) seeking citizen participation (3) and institutional collaboration. According to Elena, an open justice system should at least publish (1) court rulings, (2) statistics regarding the performance of courts and (3) budget allocation information. Also, that data should be both legally and technically open. Citizens would need to be allowed to freely access, reuse and distribute the data, which should be made available in a machine-readable format and in bulk.

Expected effects

Open justice would have beneficial effects both on the public and the private sector. The key promise is that as the data sets keeps growing, machine learning software will be able to depict in more precise terms the decision patterns from legal actors. This could help bridge the access to justice gap by providing guidance to citizens without a lawyer. Also, judicial analytics could level the playing field between big law and public attorneys by providing a basis of the quality of legal claims and evidence. Finally, it could also help judges learn from their mistakes, and provide assistance towards better decision-making.

However, the vast majority of legal data is currently unavailable for analytics. It could be either that it is not shared, or that is not machine-readable. But the main point is that the control of legal data still remains in the hands of a few private entities such as big law firms and companies like Lexis Nexis.

Effects

The English excuses

The French #JudicialBan

Recently, France banned the publication of statistical information about judges’ decisions. Anyone who breaks the law could be punished with a sentence of up to five years in prison. On its article 33, the new French Justice Reform Act states that “_the identity data of the magistrates and the members of the judiciary may not be reused with the purpose or effect of evaluating, analyzing, comparing or predicting their actual or presumed professional practices_”. Hence, the French Government did not intend to stop publishing the data; just to punish its comprehension through data analytics.

The problem

Open justice

Less corruption

Limits

Will we like our reflection in the mirror?

The way forward

Paper Title

-- By JoseMariaDelajara - 05 Oct 2019

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