Christopher Markou (University of Nottingham – School of Law) has posted Judged in Advance: Legal Outcome Prediction and the Temporal Structure of Adjudication (Law, Innovation and Technology, forthcoming) on SSRN. Here is the abstract:
What happens when law learns to predict its own future? Systems forecasting judicial outcomes are typically assessed for accuracy and bias. This article argues the challenge is more fundamental: prediction reconfigures adjudication’s temporal structure, collapsing the distinction between anticipation and judgment on which law’s authority depends. Reconstructing that structure through Hart, Fuller, and Dworkin, it shows each presupposes a diachronic ordering in which conduct precedes judgment and legal meaning is fixed retrospectively through public reasons.
Legal outcome prediction inverts that order. Once forecasts circulate as actionable probabilities embedded in case selection, settlement, and strategy, they become operationally prior to judgment, and reason-giving gives way to expectation management. Recent scholarship embracing algorithmic adjudication as textualism’s endpoint confirms the trajectory rather than refuting it.
The stakes are constitutive, not regulatory: the erosion of temporal openness is an erosion of legal freedom—the space in which one acts first and is judged later.
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Lawrence Solum