This is a notable entry from the Justis International Law & Technology Writing Competition 2020 in the category of Technology & the future of legal practice, by Michelle Abiah of Universitas Indonesia. Find out more about the competition, the shortlist and winning articles here.
New technologies and new laws, but no matter how the world changes, what’s rightfully yours should always be.[i] The law underlines your rights and obligations (what you can or can’t do) and it’s in our best interest that in this time of new technological innovations, the law reacts to establish equity to our modern, dynamic bustle.[ii]
Now, enter a groundbreaking machine-learning tool purposed to better law enforcement in courtrooms by generating potential scenarios of court progress for anyone who wishes to learn from precedent. Judicial analytics, by utilization of digitisation and data pumping,[iii] assists law firms and magistrates alike identify which course of action best to take before, during, and after a court proceeding[iv] because now the more likely result becomes easier to see.[v] This data interpretation is only possible depending on the availability of relevant data like win or loss rates for certain motions and trend anticipation,[vi] but also drawing conclusion from one critical element: accounting of judicial behavior.
However accounting of judicial behavior is now illegal in France, because inclusion of judges’ names in statistical analysis of court decisions has been banned.[vii] This results in the French having less information about how their judicial system works and fewer access to tools that could support court proceedings.[viii] But the rationale for the ban might not be out of practical concerns,[ix] in acknowledgment of risk minimalizing efforts.[x] Ultimately, the ban is legalized to protect magistrates’ right for privacy, and that of the personhood. But at the same time, users are restricted from whole utilization because interpretation of judiciary behavior data equates to committing a crime that could land you in jail for 5 years.
Trick question: is the ban fair? What is rightfully ours is guaranteed in authority of the law, like the constitution. The constitution guides new laws into creation and there should be no unconformity, otherwise it’s a threat to justice and therefore should not be legally binding. Is the ban’s basis for protecting the judges’ privacy rights constituent? Conversely, are there anyone’s rights being violated with the ban?
Weighing One Constituent Right to Another
French law guarantees the protection of the right for information[xi] in Article 15 of The Declaration of Rights, Man and The Citizen.[xii] It states that the society has the right of requesting an account from any public agent of its administration. In application, knowing which public agent (judge) is responsible for a certain public act (court decision) is a right of the French and therefore inclusion of it in judicial analytics becomes constituent to Article 15.
But in the eyes of European law, public officials also embodies a constituent right for privacy[xiii] and the continental court[xiv] may impose liability against publication of public figures in any way that can harm their image, which is exactly what the ban is doing. However in the search for justice that right of privacy has become a subordinate right[xv] to competing rights like the right for information. This rationale is reflected in the Balloon Theory which describes public figures’ right for privacy as a sphere that can change in size as exposing public figures’ lives is justified to the extent the information exposed is relevant to the public.[xvi]
It makes sense to account for who is responsible for which judicial behavior in drawing conclusions for assessing court proceeding flows, because decision making after all revolves around none other than the judge himself. Accounting for judicial behavior is relevant to the judicial analytics experience, as shown in one project about how judicial analytics is capable of revealing definitive pattern of court proceeding up to 75% accuracy based on data of judges’ linguistics.[xvii]
Disclosure of government information becomes crucial where it’s shown that without the desired access, meaningful public discussion and criticism on matters of public interest would be substantially impeded.[xviii] Example: if a certain member of the judiciary really were practicing bias, then there would be a legitimate need for an accountable source to identify this human subjectivity[xix] as you have the right to ensure the judge sitting on their case doesn’t have a conflict of interest.[xx] The capabilities of judicial analytics are rapidly evolving[xxi] and it could develop to satisfy our right for accountability, given the data and information needed.
The ban is a major handicap. Now, judicial analytics provide little to no help as alibis of cases for an appeal or a judge bias lawsuit because it’s forbidden to interpret data and the identity of the judge responsible. Worse yet, there are additional repercussions to this ban: what does this mean in terms of coercive and odd censorship as the judges’ position is that of a public official and the institution of a public body?[xxii] Or, how does this affect data-driven businesses?[xxiii] If the ban was a necessity, let it be for no other reason than fairness. But a public figure’s balloon size is smaller compared to that of a “regular” person. Is it fair to deny the people’s rights for information and accountability from that of a state agent, whose sole purpose is to have their actions deemed just?
Judicial Review for Ban of Judicial Analytics
The French may come to vocalize their realization that the full version of judicial analytics is more good than bad, and attempt for adjustments. Judicial review is, albeit a challenge, one solution. [xxiv] Only the law itself could tip back its scales, as even in the face of new technologies and laws, what’s rightfully yours should always be. Not the gadget, but the advancement of justice that the technology offers to bring, that is our right.
Michelle Abiah is finishing her bachelor’s degree in law at Universitas Indonesia (with a focus on technology law and legal innovation) and is currently an apprentice at Budidjaja International Lawyers. Michelle is also the initiator and founder of Hai.Lex! – their current project is developing a platform for where people can share and find accessible as well as relevant legal updates concerning COVID-19 outbreak in Indonesia.
[i] The law functions to protect basic rights. See Denning, Legal Institutions in England Today and Tomorrow (M. Paulsen ed 1959) 253
[ii] The law can be the instrument of stability as well as the instrument of change. See N. Timasheff, An Introduction To The Sociology Of Law (1939) 338. Berman observes that the law is an instrument not only for social change but also for social continuity. See also H. Berman, The Nature and Functions of Law, (1958) 31
[iii] ‘The World Most Valuable Resource is No Longer Oil, But Data’ The Economist (London, May 6th 2017) <https://www.economist.com/leaders/2017/05/06/the-worlds-most-valuable-resource-is-no-longer-oil-but-data> accessed 7 December 2019
[iv] Law firms gain the upper hand by way of predictability, which in turn helps ready them for all sorts of various proceeding scenarios. This results in a cut down of cost and time, which consequently help make services more readily available. Governments benefit by having account of probable anomalies with which we can use to detect and handle the situation accordingly. Judiciary included sees benefit from this technology in the plausible scenario that they secure support for their decisions. As example, a court proceeding may have arrived at a legally binding decision, but that doesn’t mean that there’s no room for reexamination or legal efforts. In France, pursuant to Article 40 of the Code of Civil Procedure, a judgment that has rules upon an unspecified claim is subject to appeal. Judicial analytics may come to aid magistrates and law firms alike get straight to the point in deciding if claim is deserving of appeal by relying on an accountable, factually and judicially sensitive program for reference to determine eligibility, or the lack thereof. The benefits are within a realm of possibility. See Cristiano Dalla Bona, ‘Predictive Analytics is Giving These Firms The Winning Edge’ The Lawyer (London, September 11th 2018) <https://www.thelawyer.com/predictive-analytics-law-firms/> accessed 7 December 2019
[v] Barney Thompson, ‘Big Data: Legal Firms Play “Moneyball”’ Financial Times (London, February 6th 2019) <https://www.ft.com/content/ca351ff6-1a4e-11e9-9e64-d150b3105d21> accessed 7 December 2019
[vi] The capabilities of legal analytics are rapidly evolving. A lot of lawyers think of their case as a special snowflake — that the facts are unique, that nothing like it has ever happened before. And it’s just not true. See Lucian McMahon, ‘Data Analytics Comes to The Legal Profesion’ (The Triple-I Blog, February 14th 2019) <https://www.iii.org/insuranceindustryblog/data-analytics-legal-profession/> accessed 30 November 2019
[vii] A key passage from the amended article 33 of the Justice Reform Art states “the identity data of magistrates and members of the judiciary cannot be reused with the purpose or effect of evaluating, analyzing, comparing or predicting their actual or alleged professional practices. See ‘France Bans Judge Analytics, 5 Years in Prison for Rule Breakers’ Artificial Lawyer (London, June 4th 2019) <https://www.artificiallawyer.com/2019/06/04/france-bans-judge-analytics-5-years-in-prison-for-rule-breakers/> accessed 30 November 2019
[viii] Michael Livermore and Dan Rockmore, ‘France Kicks Data Scientists Out of Courts’ Slate (New York, June 21st 2019) <https://slate.com/technology/2019/06/france-has-banned-judicial-analytics-to-analyze-the-courts.html> accessed 30 November 2019
[ix] Some say that the stakes are higher when data-based computer algorithms are used to predict potential recidivism rates for sentencing purposes. See Michelle V. Rafter, ‘Social Media and Other Innovations are Jarring The Judiciary’ Best Lawyers (Florida, June 29th 2017) <https://www.bestlawyers.com/article/law-predictive-analytics-social-media/1440> accessed 30 November 2019. In addition, racial biases are inherent in the analytics-based software some courts use to predict future criminal behavior in order to make recommendations about bail, sentencing, and early release. See also Julia Angwin, Jeff Larson, Surya Mattu and Lauren Kirchner, ‘Machine Bias’ Pro Publica (New York, May 23rd 2016) <https://www.propublica.org/article/machine-bias-risk-assessments-in-criminal-sentencing> accessed 30 November 2019. There have also been fundamental questions to this as magistrates have already had means for creating a presentence investigation report and to inherently function as original creator of just sentencing as an expert. But judicial analytics hasn’t been in development to guarantee the outcome of a case up to 100% certainty or dictate the flow of proceeding but rather to boost performance. It was never intended to get rid of judges, it was meant to help them. See ‘Taking Analytics to Court’ (LexisNexis, March 6th 2019) <https://www.lexisnexis.com/community/lexis-legal-advantage/b/insights/posts/taking-analytics-to-court> accessed 30 November 2019
[x] Antoine Garapon, The Challenges of Predictive Justice (La Semaine Juridique, January 9th 2017)
[xi] Article 8 of the European Convention on Human Rights is one of the strongest milestones in protecting individuals’ private information in Europe. See European Convention of Human Rights  OJ C326/ 10, art. 8 (“Everyone has the right to the protection of personal data concerning him or her.”).
[xii] The multitude of definitions produced by scholars can be narrowed down to six basic conceptions of privacy, including: “(1) the right to be let alone; (2) limited access to the self; (3) secrecy; (4) control of personal information; (5) personhood; and (6) intimacy.” See Daniel J. Solove, Privacy and Power: Computer Databases and Metaphors for Information Privacy (Stan L Rev 2001) 53
[xiii] Article 8 of the European Convention on Human Rights states: (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. See Shlomit Yanisky-Ravid Ben Zion Lahav, ‘Public Interest ss. Private Lives—Affording Public Figures Privacy In The Digital Era: The Three Principle Filtering Model’  Volume 19: 4 The Journal of Constitutional Law 990
[xiv] In Continental jurisdictions, such as Germany and France, the philosophy of personality theory prevails and values like dignity and honor inform legal tools in which individuals, including public figures, have the right to control their image and exposure to the public, either by traditional publications or by cyberspace tools. Therefore, even if a public figure appeared nude in public, she has the legal right to restrict publication of this appearance. This is true even in cases where a public figure sold her nude picture. The control over the public image invalidates publication after the sale of the image. The fact that a public figure agreed to be photographed in an intimate pose is insufficient to validate the publication of this image. See Shlomit Yanisky-Ravid Ben Zion Lahav, ‘Public Interest vs Private Lives—Affording Public Figures Privacy In The Digital Era: The Three Principle Filtering Model’ 998
[xv] See Shlomit Yanisky-Ravid Ben Zion Lahav, ‘Public Interest ss. Private Lives—Affording Public Figures Privacy In The Digital Era: The Three Principle Filtering Model’ 997
[xvi] The writers of the following source argue that public figures should also enjoy the “balloon” of privacy on the Internet to a certain level in any of the following situations: (1) the information is private in the sense that it describes intimate personal details, which do not contribute to or are irrelevant to the fulfillment of his or her public role; (2) the information serves mainly (if not solely) as voyeurism; and (3) the information is not of a kind that the public figure exposes to the public by his or her own will (without regret). See David Kretzmer, ‘Demonstrations and the Law’ (Stan L Rev 1984) 19
[xvii] Masha Medvedeva, Michel Vols, Martijn Wieling, ‘Using Maching Learning to Predict Decisions of The European Court of Human Rights’ (Springer Link, June 26th 2019) <https://link.springer.com/article/10.1007/s10506-019-09255-y> accessed 7 December 2019
[xviii] Although the Supreme Court of Canada recognized the constitutionality of the right to information under the specific circumstances of the case, future litigation will likely argue that the same reasoning applies to cases in which information is needed to achieve a just end. See Ontario (Public Safety and Security) v. Criminal Lawyers’ Association,  1 S.C.R. 815 (Can.). p 37
[xix] Gregory Bufithis, ‘Understanding The French Ban on Judicial Analytics’ (Gregory Bufithis, June 9th 2019) <http://www.gregorybufithis.com/2019/06/09/understanding-the-french-ban-on-judicial-analytics/> accessed 7 December 2019
[xx] Peter S. Green and John Mazor, ‘Corrupt Justice: What Happens When Judges’ Bias Taints a Case?’ The Guardian (London, October 18th 2015) <https://www.theguardian.com/us-news/2015/oct/18/judge-bias-corrupts-court-cases> accessed 7 December 2019
[xxi] Mark A. Cohen, ‘Why is Law So Slow to Use Data?’ Forbes (New Jersey, June 24th 2019) <https://www.forbes.com/sites/markcohen1/2019/06/24/why-is-law-so-slow-to-use-data/#24a4ab73b8eb> accessed 7 December 2019
[xxii] ‘France Bans Judge Analytics, 5 Years in Prison For Rule Breakers’ Artificial Lawyer (London, June 4th 2019) <https://www.artificiallawyer.com/2019/06/04/france-bans-judge-analytics-5-years-in-prison-for-rule-breakers/> accessed 7 December 2019
[xxiii] Sam Clark, ‘France Limits Dana Analysis of Judges’ Decisions’ Global Data Review (London, June 7th 2019) <https://globaldatareview.com/policy/france-limits-data-analysis-judges-decisions> accessed 7 December 2019
[xxiv] French law history may not have seen much of judicial review. But there is a slow, organic growth of the institutions and values of the Fifth Republic over time through political, legal, and customary practice, and the recognition and implementation of that growth by constitutional amendment and interpretation has gradually transformed the Constitution of 1958 from “General de Gaulle’s Constitution” to the Constitution of the French people, as it should be. See Olivier Beaud, L’histoire du concept de constitution en France De la constitution politique à la constitution comme statut juridique de l’État, 3 JUSPOLITICUM (No. 3, Dec. 2009), <http://www.juspoliticum.com/L-histoiredu-concept-de.html> accessed 7 December 2019. After all, if the people will it, the government should realize and bring it into concrete actions, as a democracy without some form of judicial review is considered deficient. See Doreen Lustig and J. H. H. Weiler. ‘Judicial Review in The Contemporary World – Retrospective and Prospective’ Oxford Academic (London, June 15th 2018) <https://academic.oup.com/icon/article/16/2/315/5036485> accessed 7 December 2019