Prediction, Persuasion, and the Jurisprudence of Behaviorism

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Glyn Cashwell Frank Pasquale Prediction

Notes

We don’t know what’s going on in a judge’s head; it’s a black box, too

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explain why the decision was made

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realist commentators dismissing the legal justifications adopted by judges and administrators as unconvincing fig leaves for the “real” (non-legal) bases of their decisions.

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policy considerations motivating judgments

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frank recognition of judges as political actors

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predict how judges will decide cases, how individual judges will vote, and how to optimize submissions and arguments

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one more tool deployed by richer litigants to gain advantages over poorer ones

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human behavior can change dramatically in a short period of time. Therefore, one should always be cautious when applying automated methods in the human context

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There is an inevitable interface of human meaning that is necessary to make sense of social institutions like law. Machine “learning” is nowhere near simulating it, let alone understanding it in recognizably human terms

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predictions of outcomes on the assumption that there is enough similarity between (at least) certain chunks of the text of published judgments and applications lodged with the Court and/or briefs submitted by parties

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As any student of statistics knows, if one tests enough data sets against one another, spurious correlations will emerge

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it is a foundational principle of both administrative and evidence law that irrelevant factors should not factor into a decision

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predictive tools are, at present, largely irrelevant to debates in jurisprudence

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Efficiency simpliciter is not an adequate rationale for modeling predictions of judicial behavior

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