• December 1, 2014

6_fault..1gifRegular readers of Minnesota Litigator will note some themes in posts. One is that we are in the midst of a digital data revolution that is radically changing the practice of law along with our entire society (here’s a sampling of posts along these lines). Another theme that might get a little short-changed in comparison with the first is our changing demographics and the explosion of diversity in U.S. culture (here are posts on the subject of gender and how changing views play out in civil litigation).

Give some thought to how these two forces run alongside one another and run into one another.

On the one hand, an increasingly diverse population (diverse racially, diverse culturally) seems extremely well aligned with a data-driven culture. The application of numerical standards, the study of statistics, of correlations, empirical analysis, the goal of objective measures and standards, seem particularly appealing in a culturally atomized society where we all (well, most of us) seek to do away with insidious insider factions, “old boy networks,” and decision-making that appears to be based on personal ties rather than objective merit.

On the other hand, however, there is a profound disconnect between the world of “big data” and the explosion of diversity through-out American life.

It comes down to this: the digital revolution can measure certain data at almost no cost that has never been captured, much less analyzed, in all of human history. But computers seem entirely inadequate to answer many other questions, like when a woman is reasonably threatened by a man’s outburst so that publication of fear for her physical safety is or is not defamatory? It will be a long time if ever before computers understand why many Asian Americans take offense when asked, “Where are you really from?

So my point here is a distillation of several that I have made recently: judging and justice will be the very last human endeavors that any computer system could ever substitute for humans and now more than ever it is important that our justice system reflect the diversity of our constituents because, in the end, our justice system will never be able to defend its results with numbers, data analysis, or scientific certainty. Our justice system’s legitimacy will rest entirely on a widespread understanding of the system’s rationality and humanity. Many will feel that our justice system cannot appreciate and respect the diversity of humanity if it does not reflect it.


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