'The Big Data Jury' by Andrew Guthrie Ferguson boldly addresses "the disruptive impact of big data technologies" on US jury selection,
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Jury selection requires personal information about potential jurors. Current selection practices, however, collect very little information about citizens, and litigants picking jury panels know even less. This data gap results in a jury selection system that: (1) fails to create a representative cross-section of the community; (2) encourages the discriminatory use of peremptory challenges; (3) results in an unacceptably high juror “no show” rate; and (4) disproportionately advantages those litigants who can afford to hire expensive jury consultants.
Big data has the potential to remedy these existing limitations and inequities. Big data technologies offer a highly personalized, current, and targeted mechanism for locating citizens in a particular jurisdiction. Big data companies have been collecting public and quasi-public information about most American’s consumer, financial, health, political, and personal interests for years. For courts, the availability of real-time, personally targeted data provides the potential for algorithmically-precise representative jury venires and more efficient jury summonsing practices. This collected personal data also can be quite revealing about attitudes, inclinations, and interests. For litigants, the available information could provide a wealth of insights once only available from expensive jury consultants. Big data has the potential to democratize information about jurors leading to less discriminatory jury selection practices. Big data information, thus, has the potential to revolutionize how jury pools are selected and jury panels are picked.
Yet, adoption of big data technology carries real risks. Traditional jury roles and values, including the continued legitimacy of the jury system, itself, are at stake. Increased big data collection of personal information involves an invasion of privacy that could result in significant backlash against jury service. Affirmative targeting of jurors also presents thorny constitutional issues, as considerations of race, gender, or ethnicity could run into equal protection problems. Equalizing the availability of big data information about jurors, and making it a part of the jury selection system, raises practical, theoretical, and constitutional dilemmas all of which are addressed in this article.
'An Appetite for Suppression: Non-Publication Orders, Open Justice and the Protection of Privacy' by Miiko A. Kumar and David Rolph in Dieter Dorr and Russell L. Weaver (eds.)
Perspectives On Privacy: Increasing Regulation in the US, Canada, Australia and European Countries (Walter de Gruyter, 2014)
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The principle of open justice is a fundamental doctrine of the common law. It is only departed from where it is strictly necessary to do so. Historically, then, merely because a court proceeding involved the public ventilation of private matters was not a sufficient basis for derogating from open justice. Recently, courts, legislatures and law reform bodies have been increasingly concerned about directly protecting privacy. The greater legal protections afforded to privacy have seen some challenges to the primacy of open justice. This chapter examines a number of recent cases in which high-profile litigants have attempted to obtain suppression or non-publication orders, in part to protect the privacy of their affairs from media scrutiny. It considers how the emerging tension between open justice and privacy might develop in the future and how it might be resolved.
