In March, France made a controversial move and became the first country in the world to explicitly ban research on individual judicial behaviour. It is now a criminal offence to ‘evaluate, analyse, compare or predict’ the behaviour of individual judges. The maximum sentence is a remarkable five years in prison.
This new harsh regulation was triggered in part by the use of machine learning to compare the behaviour of judges in asylum cases – a study which found great discrepancies among individual justices. Yet, the new law is akin to using a sledgehammer to crack a nut. It bans effectively all forms of analysis of individual judges, and not just big data-driven social scientific inquiry but also doctrinal legal analysis. The result is a flagrant violation of the freedom of expression, represents an affront to basic values of academic freedom, and disregards basic principles of the rule of law. It is moreover likely a violation of fundamental EU law but we leave that for another post.
It is perhaps somewhat ironic that the ban comes after France had taken bold strides towards digitalising court judgements, thereby paving the road for data-driven engagement with French jurisprudence. The availability of French case-law in digital form coincides with the boom in legal tech companies; and empirical legal research using such data has positioned France at the frontier of computational analysis of law. Making case-law easily available also speaks to fundamental concerns about the rule of law, including transparency of the law and a healthy scrutiny of the court system. No one is above the law, including the courts.
The turn-around on these matters has apparently been in the making for some time. In 2016, a lawyer and machine learning expert, Michaël Benesty, published an analysis of French asylum decisions. The results were striking. Some judges rejected almost all asylum requests; others had a very low ratio of rejection. Given the large sample size and the random distribution of cases amongst judges, the evidence of judicial bias was compelling. Benesty also created a non-profit website, SupraLegrem. Members of the public could observe ongoing variation amongst the judiciary on asylum cases and use the software to analyse judicial bias in other types of decisions.
https://verfassungsblog.de/france-criminalises-research-on-judges/