Nate Silver, the founder and editor of FiveThirtyEight, is an evangelist of the benefits of utilizing more data and quantitative analysis in nearly every to field imaginable ranging from baseball, economics and politics, to the Oscars, travel and medicine (and who John Stewart referred to as “the Lord and God of the Algorithm”). In many of those areas his work is not only changing minds, but has proven remarkably accurate – even borderline prophetic – and has been deeply impactful across a wide range of sectors. And yet in a recent interview with George Mason University’s Tyler Cowen, Silver remarked that law stood little to gain from the type of data-driven analysis that has made him an icon.
COWEN: We’re in a law school right now. If we applied a lot more data to the law, what kind of improvement could you imagine we might come up with, just tentatively?
SILVER: See, I think that might be the last field where —[laughter]
SILVER: Where you would have a lot of — and I don’t say that in a pejorative way at all. But a lot of the advantage of working with data sets and becoming more adept at it is that you get an answer that’s at least approximately right. Whereas, the legal sector, I think, relies more on precision. You want a very precise and possibly wrong answer, which is what you’re trying to avoid sometimes when you’re doing statistical analysis.
His point is a powerful one: law is different. Lawyers are not in the business of constructing teams that will win championships, calculating who will win an election, making a medical diagnosis or choosing an appropriate treatment method – they are looking to focus on the very precise persuasive legal argument. Even if we quantified precedent, texts, statutes and logic- we couldn’t possibly hope to create an algorithm that extracts meaning from each of them or that compares, weighs and balances them against each other in a legally meaningful manner that can be applied to unique and localized cases. Lawyers must display artistic and compelling interpretations beyond aiming for a ruling within a few standard deviations of their desired outcome and at times must battle to prevent the result that may seem statistically likely or correct based on the known data.
This, of course, is not to say that law will be unaffected by statistics or data-driven decision-making. Rather, the types of decisions being made through it will likely remain at research phases, and decisions that focus less on what should be argued and instead where or in front of whom the same arguments should be made (see for example Ravel Law or Legalmetric).