From Secrecy to Data Judicial Commons

-- By JoseMariaDelajara - 05 Oct 2019

The problem

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?

Open justice

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 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.

Will we like our reflection in the mirror?

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.

The way forward: data commons

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.

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.

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