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< | From Secrecy to Data Judicial Commons | >
> | Open justice against closed minds | | | -- By JoseMariaDelajara - 05 Oct 2019 | |
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< | The problem | >
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< | Support for open government is growing. However, the progress in opening judicial data sets has been slower than that of the legislative and executive branches. The main fear of judicial officers seems to be the perception that new technologies (i.e. data analytics) could have adverse effects on the employee's job. In other words, judges seem to be worried that data analytics will show their decisions as they really are: irrational yet predictable. When we face the complete picture of our flawed justice system, will we still accept it? | >
> | The problem | | | | |
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< | Open justice | >
> | The judiciary can be an odd place. Legalese, strange practices, and corruption scandals predispose citizens into being cautious. Open justice could help regain that trust. | | | | |
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< | 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. | >
> | Open justice | | | | |
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< | 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, data analytics 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. This violates citizen's access to justice, now including open data as a human right. | >
> | Support for open government is growing. In the judiciary open data is considered as a a human right and a key element of citizens' access to justice right. Open justice 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. | | | | |
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< | Will we like our reflection in the mirror? | >
> | The key promise of open justice is to regain citizens' trust while closing the access to justice gap. As the data sets keep growing, government will be able to provide better [guidance to citizens without a lawyer, a parameter of the quality of legal claims and evidence that would level the playing field between big law and public attorneys, and a public scrutiny of judges’ decisions leading towards better decision-making. | | | | |
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< | The main fear of judicial officials opposing open justice is that the data will be run through machine learning software and reflect their actual decision patterns. They are right in the sense that justice is fallible. For example, Chen found out that perceived masculinity of the voice of the attorney predicts court outcomes (i.e. males are more likely to win then they are perceived as less masculine). Emotions can also influence legal decision making. For example, a meta-study analyzing 23 experiments with over 4500 participants determined that gruesome evidence led to harsher sentences in 95% of the cases. Also, judges were found to be influenced by irrelevant sentencing demands, even when the demand was a product of them throwing dice. That's not all. Judges have been found to be influenced also by extraneous factors such as unexpected outcomes of football games in the same week of the decision or the last time they took a food break. | >
> | Open justice leads to citizens' trust | | | | |
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> | Open justice sheds light on previously hidden aspects of judicial activities. 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. | | | | |
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< | The way forward: data commons | >
> | An open justice system leads to an increased exposure of judges’ behavior, whether good or bad. The disclosure of this information strengthens the ability of civil society to understand, supervise, and engage with the performance of the courts.
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
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< | As we’ve seen, legal analytics with enough data could show a picture of biased law. This could be fixed by curating the data. A data commons is a good place to do that. A "data commons" refers to knowledge being freely shared, collectively owned and managed by a community using software to manage the input, harmonize it and analyze it. In this regard, the Linux Foundation has developed two types of community data license agreement licenses to allow users to access data (one requires that the changes to data are shared, while the other doesn’t). The technical and legal requirements for data judicial commons to work are set. We can learn from the free software movement and raise awareness of the opportunities that open justice could create for government, business and citizens alike. | | | |
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