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

OUP Collected Courses Volume EUI Summer-school, 2019

27 Pages Posted: 30 Mar 2020

See all articles by Mireille Hildebrandt

Mireille Hildebrandt

Vrije Universiteit Brussel; Radboud University

Date Written: 2019

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

Suggested Citation

Hildebrandt, Mireille, Data-Driven Prediction of Judgment. Law’s New Mode of Existence? (2019). OUP Collected Courses Volume EUI Summer-school, 2019, Available at SSRN: https://ssrn.com/abstract=3548504 or http://dx.doi.org/10.2139/ssrn.3548504

Mireille Hildebrandt (Contact Author)

Vrije Universiteit Brussel ( email )

Pleinlaan 2
Brussels, B-1050
Belgium

HOME PAGE: http://www.vub.ac.be/LSTS/members/hildebrandt/

Radboud University ( email )

P.O. Box 9010
Nijmegen, 6500GL
Netherlands

HOME PAGE: http://https://www.cs.ru.nl/staff/Mireille.Hildebrandt

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