Paper Title

-- 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

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.

Open justice + legal analytics = more access to justice

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.

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.

Will we like our reflection in the mirror?

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 way forward

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