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France Criminalises Research on Judges

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France Criminalises Research on Judges
« on: Jul 05, 2019, 01:35:47 am »


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France Criminalises Research on Judges

'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. <strong>Background</strong>

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.'

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