Janet Freilich (Fordham University School of Law) has posted Law as a Lamp Post (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:
Law produces all manner of public information: court documents, securities filings, patents, property records, and much more. This information is used in a multitude of ways—it teaches readers about individual cases, transactions, or entities, and is also aggregated to inform policymaking, set priorities, and drive predictive analytics and artificial intelligence.
But choices about the information produced (or hidden) by law are often unintentional. Doctrines and institutions that appear facially unrelated to information production—like subject matter jurisdiction—nonetheless affect the shape and quantity of data produced. And even doctrines focused on information—like property recordation—create data used for purposes never envisioned by the law. We can only count what we can see, so law is inadvertently deciding which transactions, cases, and people are influential and which are invisible. Choices about how law produces information are directly responsible for selection bias—and thus for incorrect decisions—in areas as varied as how we calculate risk of child abuse, classify causes of death, create contract drafting software, and automate adjudicative processes.
After demonstrating the prevalence of law’s accidental information spillovers and their effects—which are unaccounted for by existing theories of law and information—this Article provides an updated framework for incorporating information into the theory and structure of law and highlights new roles for legal doctrines and institutions. The Article concludes with concrete ways that this new understanding of information can affect policy, including how it can be factored into institutional and doctrinal decisions, how to update the cost-benefit analysis of legal information to account for new uses and audiences, and how law might address harmful biases in available legal information.
Fascinating and recommended.
