by Shubha Ghosh, Crandall Melvin Professor of Law and Director, Intellectual Property and Technology Commercialization Law Program
France a month ago enacted a new legislative provision criminalizing the use of information about judges and their decisions to make predictions about judicial behavior. The provision is an amendment to a statute that protects the identity of litigants and is justified in part as a need to protect the privacy of judges. Slate has a good article summarizing the legislation: French Law Kicks Data Scientists Out of Court.
More than judicial privacy and reputation is at stake, however. Professor Dana Beldiman of Hastings College of Law and Bucerius Law School in Hamburg shared with me an editorial from the Legal Tribune Online, with the headline “Fruit of Knowledge is Forbidden Not Only in Paradise” (apologies for my translation). The editorial is highly critical of the law and also reveals perhaps the real impetus for the law: research by attorney, Michael Benesty, on the decision making by judges in asylum cases. His story details the response by judges and legislators to his disturbing findings.
Some people I have talked to about this law describe it as a response to the fears of big data and automation. This moral panic (la panique morale?), as I would describe it, may explain the reaction. Perhaps, the motivation is just plain embarassment for revelation of bias. Such a statute would be unconstitutional under US law, in light of the Supreme Court’s 2011 decision, IMS v. Sorrell (dealing with state statutes limiting access to prescription data used by pharma companies to promote their brands).