Data-Driven Prediction of Judgment. Law’s New Mode of Existence?

Abstract

This chapter enquires into the upcoming domain of data-driven ‘law’, that is, into the use of big data analytics and predictive technologies as a means to inform the law. I will argue that this may transform the ‘mode of existence’ of law, due to the novel ‘affordances’ of data-driven systems. In the first part I will investigate the promises of legal decision-making based on the mathematical assumptions of machine learning, opening the black box of algorithmic ‘insights’ at the level of the underlying research design. In the second part I will examine the nature of modern positive law as text-driven law, by highlighting the performative nature of legal effect and how this relates to the force of law. Finally, I will identify some of the challenges presented by data-driven ‘law’ in terms of legal protection. This will result in a proposal to integrate ‘by design’ approaches into law and the rule of law, clarifying how and why ‘legal protection by design’ is not equivalent with ‘legal by design’ or ‘techno-regulation’.

Keywords: Data-Driven Law, Prediction of Judgment, Machine Learning, Natural Language Processing, Text-Driven Law, Rule of Law, Legal Protection, Speech Act Theory