Earlier this year, France adopted a law which forbids anyone from analyzing data about judges’ court decisions with violators facing up to five years in jail. Supporters of the ban say it is necessary to protect the privacy of judges because statistical analysis may reveal troubling patterns about how certain judges behave on the bench, but the law is a clear loss for transparency and severely limits the use of analytics in the justice system. Now French lawyers are demanding the same protections, which if granted, would be a severe loss of judicial analytics in France.
There are three problems with this ban on judicial analytics.
First, the ban will restrict free speech. Although the judiciary will still publish the names of the judges involved in court decisions and legal cases, their identities cannot be used to “evaluate, analyze, compare, or predict their professional practices.” For example, a news site cannot use court records to publish a statistical comparison of how different judges treat similar cases. Restrictions on free speech ultimately limit the public from accessing information about the French judicial system.
Second, limits on judicial analytics will decrease productivity for lawyers and others seeking to understand and predict court decisions. For example, a law firm cannot analyze data about past cases before a specific judge to advise their clients on the best strategy to use for a particular case. And investment firms cannot use analytics platforms to predict outcomes in pending cases involving the companies they are invested in based on past actions of certain judges. These restrictions raise costs for businesses which are then passed on to consumers.
Third, the French law will limit the use of tools that judges themselves could take advantage of to improve their performance. After all, judges can use analytics tools to identify questionable patterns in their decisions that deviate from their peers. This type of analysis could help judges become more impartial in their decision-making and identify inconsistencies in their actions.
The claim that this law is necessary to protect judge privacy is indefensible because the records themselves are public, so the only restriction is on the analysis of these records. Analyzing public data does not create new privacy risks. Given that citizens are consistently dissatisfied with the judicial sector, policymakers should be promoting more transparency in the courts, not less.
Judicial analytics is a growing field, and policymakers should welcome the use of this technology. Unfortunately, the new French law will restrict free speech, decrease productivity among lawyers, and keep helpful tools out of the hands of judges. Policymakers should revise this law, and reject the push to apply similar limitations on the use of data about lawyers. And next time, France should not be so quick to judge technology.
Image: Pedro Szekely