The Regulation of Judicial Analytics: Towards a New Research Agenda

Abstract

In 2019, the French government criminalised judicial analytics, triggering a global debate about whether regulators should be paying more attention to the use and misuse of judicial data. One might have expected France’s decisive regulatory intervention – which occurred against the backdrop of a global push for artificial intelligence regulation – to have caused other governments to doubt the viability of regulatory silence, but this did not occur. One might also have expected a large body of scholarship on the regulation of the practice to have emerged, but again this did not occur. This article takes stock of work at the intersection of regulation and judicial analytics and considers a path for the development of the nascent field. Part 2 traces the evolution of judicial analytics and its regulatory history. Part 3 explores existing work on the regulation of the practice, finding that while the literature has succeeded in ventilating key risks and generating conversation, it has not yet produced a compelling account of how judicial analytics should be regulated across diverse jurisdictions. Part 4 suggests priority actions for the field, including the development of a robust theory of regulatory success and the use of empirical methods to expose how judicial analytics impacts individuals and societies.