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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