Small Data, not (Only) Big Data: Personalized Law and Using Information from Previous Proceedings

Abstract

Traditionally, legal rules in private law are general and impersonal. This Article proposes a novel development in personalizing private legal proceedings and promoting efficient evidence-based judicial decisionmaking. It advocates recourse to personalization regarding parties to a particular proceeding through the use of concrete, internal information obtained from previous proceedings—Internal Process Data (IPD). We argue that IPD may well increase efficiency and save on costly and lengthy legal proceedings. The Article will focus on sophisticated players, namely, repeat, skilled players, such as insurance companies or commercial entities, as well as administrative authorities.

The insights may, in fact, be used in every proceeding in which relevant information exists from earlier proceedings in which at least one of the parties to the present litigation participated. Such information may assist the courts in dealing with the case at hand in the best possible way by predicting the preferences of one or both parties regarding the present case. Criteria for the implementation of personalization will be presented, as well as the principal advantages of use of IPD as opposed to use of “Big Data.” The research agenda proposed in this Article could yield insights that guide courts and policymakers in considering directions for personalization of law that are efficacious but less controversial than those of Big Data.

We demonstrate the argument from different fields and branches of law. One prominent example relates to dispute resolution proceedings—approval of a compromise settlement by the court in a class action.

The Article also investigates the ways that technology (such as technology for storing, indexing, and searching court records) might influence how law could be personalized in a context that is outside the context (Big Data) in which the role of technology is usually discussed in this area.
Although IPD has the potential to make a valuable contribution to both legal scholarship and legal policy, it also raises practical and ethical questions about administrability, transparency of legal process, protection of privacy, and equal treatment under the law. Some of these difficulties and objections to the use of IPD will be addressed in the Article.

The Article may constitute an opening for a wider argument in favor of the implementation of objective rules only as a residual matter, i.e., where there is no concrete earlier information nor even any statistical information as a result of Big Data. In all other cases, IPD must take priority.

Keywords: Personalized law, personalization, private law, decision making, evidence-based judicial decision making, legal procedures, information, previous acts, previous proceedings, evidence law, procedural law, insurance law, tort law, relief, sanctions, remedies, efficiency, courts, jury, Big Data, object

JEL Classification: K1, K10. K13, K19, K12, K30, K39, K41, K00