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27 Cornell J. L. & Public Policy 357 (2017-2018)
The Law and Big Data

handle is hein.journals/cjlpp27 and id is 373 raw text is: THE LAW AND BIG DATA Caryn Devins, * Teppo Felin, ** Stuart Kauffinan*** & Roger Koppl**** In this Article we critically examine the use of Big Data in the legal system. Big Data is driving a trend towards behavioral optimization and personalized law, in which legal decisions and rules are optimized for best outcomes and where law is tailored to individual consumers based on analysis of past data. Big Data, however, has serious limitations and dangers when applied in the legal context. Advocates of Big Data make theoretically problematic assumptions about the objectivity of data and scientific observation. Law is always theory-laden. Although Big Data strives to be objective, law and data have multiple possible meanings and uses and thus require theory and interpretation in order to be applied. Further, the meanings and uses of law and data are indefinite and con- tinually evolving in ways that cannot be captured or predicted by Big Data. Due to these limitations, the use of Big Data will likely generate unintended consequences in the legal system. Large-scale use of Big Data will create distortions that adversely influence legal decision-mak- ing, causing irrational herding behaviors in the law. The centralized na- ture of the collection and application of Big Data also poses serious threats to legal evolution and democratic accountability. Furthermore, its focus on behavioral optimization necessarily restricts and even elimi- nates the local variation and heterogeneity that makes the legal system adaptive. In all, though Big Data has legitimate uses, this Article cau- tions against using Big Data to replace independent legal judgment. INTRODUCTION .................................................... 358 I. BIG DATA, LITTLE PERSONS: THE RISE OF BEHAVIORAL OPTIMIZATION AND PERSONALIZED LAW ............... 362 A. The Big Data Paradigm ......................... 363 B. Behavioral Optimization and Personalized Law ... 365 • Research and Writing Attorney, Federal Public Defender for the Western District of North Carolina. This Article is submitted in an independent capacity and does not represent the views of the institutions with which the authors are affiliated. •* Professor of Strategy, SaYd Business School, University of Oxford. • Institute for Systems Biology, Seattle. •*** Professor of Finance, Whitman School of Management of Syracuse University. Roger Koppl gratefully acknowledges the financial support of the Earl V. Snyder Innovation Man- agement Center of Syracuse University's Whitman School of Management.

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