Slaw.ca Legal Ethics Column, October 20, 2020
Found online at: https://www.slaw.ca/2020/10/20/judicial-analytics-facing-uncomfortable-truths/
For as long as there have been judges, people have tried to predict judges’ decisions. In so doing, they have always understood that judges are human beings. They are not calculators from an assembly line, each of which will display the same result if one punches in the same inputs. Thus, at any watering hole where litigators gather, it will be overheard that “Justice Smith comes down hard on drug offenders,” or “If your client has soft-tissue injuries, you had better hope that you don’t draw Justice Jones for the trial.”
In France, it would seem that such conversations are now illegal. Loi no 2019-222 du 23 mars 2019 forbids the use of information about the identity of judges in order to evaluate, analyze, compare or predict their actual or expected decisions.[1] The Assemblée nationale was worried by the emergence of artificial intelligence applications which crunch data about prior judicial decisions, and use it to predict decisions. An excellent forthcoming Dalhousie Jaw Journal article by Amy Salyzyn and Jena McGill argues persuasively against this ban. Salyzyn & McGill also identifying the challenges and opportunities posed by the emergence of mainstream “judicial analytics” technology.
France’s ban on judicial analytics is a bad idea, but there is a noble sentiment behind it. People aspire to live under the “Rule of Law,” and not the “Rule of People.” We want, and we should want, the outcome of legal disputes to depend exclusively on the facts and the law, and not on what individuals happen to adjudicate those disputes.
Undeniably, however, there are patterns in decisions which can only mean that the identity of the judges affects the outcomes. To take a Canadian example, Sean Rehaag has demonstrated that the outcome of a refugee case before the Federal Court of Appeal depends significantly on which judge happens to hear it. Modern judicial analytics simply brings these patterns to light more consistently and quickly than lawyers’ shop-talk did in previous generations.
In the words of Friedrich Hayek, “the law cannot rule. Only men can exercise power over other men.”[2] Much as we might wish it to be so, it cannot be reasonably maintained that the law itself always makes the all the decisions, with judges merely serving as its neutral mouthpieces. France’s ban on judicial analytics is an effort to suppress this uncomfortable truth and preserve what is, at best, a noble lie. It is incompatible with the freedom of speech, and the accountability of public officials.
In addition to being misguided, the effort is probably futile in this day and age. If there is demand for judicial analytics in France, then someone will meet that demand from outside the country’s borders. We would all do better to face the uncomfortable facts that judicial analytics reveals about the nature of judging. With eyes wide open, we can work to design a justice system which, as much as possible, delivers consistent and fair results to everyone.
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[1] “ Les données d’identité des magistrats et des membres du greffe ne peuvent faire l’objet d’une réutilisation ayant pour objet ou pour effet d’évaluer, d’analyser, de comparer ou de prédire leurs pratiques professionnelles réelles ou supposées.”
[2] The Constitution of Liberty.