!"#! #$%#&'$( $')'' * +* "#+ # ,$-) " "" ) ! "" + + # ! + " ! #!)## " "# + # " # # + "# # ! #) #! " " " ). # ! # " # ) " # # "" +"#! ) # # + " ! # ) !# " ) " # +" " # !# "" # ) " + + + #" " + + " " ! ) # #! " # +" " # ) # " + /! ) 0# " " " #+ # # " " # )" # + 1 0# " 2#3 40235 * 3# 4*35 " ! 0# " 40 5) # + 6" 7# ) " " #+ " ! " # ) # " # "8 ! " &'$( "9::#)!): 8#;#9!99#9 $-$<=( .>?(1?$(<-?(-1( .>?(1?$(<-?(-?- +$'<?$ OUR HUMANITY EXPOSED Predictive Modelling in a Legal Context Stanley Greenstein Our Humanity Exposed Predictive Modelling in a Legal Context Stanley Greenstein ©Stanley Greenstein, Stockholm University 2017 ISBN printed 978-91-7649-748-7 ISBN PDF 978-91-7649-749-4 Cover image: Simon Dobrzynski and Indra Jungkvist Photo of the author: Staffan Westerlund Printed by Universitetsservice US-AB, Stockholm 2017 Distributor: Department of Law, Stockholm University To my family - Anna, Levi, Nomie and Jonah. Acknowledgements I have heard that writing a thesis is like running a marathon. Having run two marathons I feel that I am in a position to comment. There are similarities in that both are long, they require lots of training and endurance and they both have many ups and downs. However, there are some major differences. A marathon has race officials to show the way, the finish line is clearly demar- cated and it is not a team effort. This is definitely not the case when writing a thesis. I would therefore like to take this opportunity to thank my thesis team. I would like to start by extending my appreciation to my supervisor, Peter Wahlgren (Professor in Law and Information Technology), who provided the legal perspective and who was always available to discuss both legal and tech- nical developments. A big thank you also to my deputy supervisor Jussi Karlgren (Adjunct Professor in Language Technology), who provided the technical perspective and who was able to explain the intricate complexities of technical phenomena in an understandable manner. Thank you both also for translating this thesis into Swedish. During the second to last year of writ- ing, the three of us would meet regularly to discuss what I had written and plan the way forward. These meetings were insightful in that I experienced what it is like to review a text with a lawyer on one side and a computer sci- entist on the other. It was motivating, it was informative, it was frustrating but most of all it was fun! Thank you! I would also like to express my gratitude to Cecilia Magnusson Sjöberg (Professor in Law and Information Technology). Thank you for your patience over the years for all those occasions I barged into your office without warning in order to get advice on one matter or another. Most of all thank you for giving me the freedom and space during these past six months so that I could focus entirely on completing this thesis. I am fully aware that this could not have been easy considering your responsibilities for making sure that all lec- turing and examination duties were covered. I would like to thank Peter Seipel (Professor Emeritus in Law and Infor- mation Technology), who took an interest in my project early on and, as a pioneer in the field of legal informatics, made the path easier for the rest of us, in this the most interesting and relevant field of law. A special thank you also to my present colleagues at the Swedish Law and Informatics Research Insti- tute (IRI): Liane Colonna, Maeve Dion, Mårten Edenroth, Ängla Eklund, Al- exandra Sackemark, Madeleine Sandberg and Christine Storr. Thank you for making sure that the daily existence as a doctoral student was not as lonely as it sometimes is made out to be. A special thank you also to Mark Klamberg for taking on the role of ‘op- ponent’ at my final seminar, for providing me with all the feedback and con- structive criticism, especially within the area of international law and for tak- ing the time to address all my follow-up queries. This thesis would not have been possible without the support of the Faculty of Law, Stockholm University. After receiving the opportunity to embark on doctoral studies, the Faculty of Law allowed me to pursue my doctoral studies within my appointment as an Adjunkt, in effect financing this project. Many thanks also to the Stiftelsen av den 28 oktober 1982 for the generous yearly book grant, allowing me to purchase the necessary reading material. Many thanks must also be given to a number of individuals at the Faculty of Law, Stockholm University. First, my appreciation to Åsa Hellstadius, for providing suggestions regarding the structuring of this thesis, for assisting me with the thesis template and most of all for reassuring me that the time was ripe to proceed with the opposition of this thesis. Also, considering that this thesis delved into areas of law that I am not a specialist in, I would like to thank Helene Andersson, Antonina Bakardjieva-Engelbrekt, Claes Granmar, Jaan Paju, Martin Ratcovich, Pål Wrange, Torben Spaak and Mauro Zamboni. In addition, many thanks to Bengt Baeckmark, Laura Carlson, Jonas Ekfeldt, Ulf Färjare, Agita Akule Larsson, Lydia Lundstedt, Grant McWilliams, Dan Olsson, Panagiotis Papapetrou, Christina Ramberg, Ida Söderberg Tah, Staf- fan Westerlund and Roger Persson-Österman. You have all helped me in some way or another and at some point in time. You have all been generous with your time, support and words of encouragement. Thank you! A special thank you also to Lee Bygrave of the Senter for rettsinformatikk, Department of Private Law, Oslo University. We would meet at the annual Nordic Conference on Law and IT where you would always show an interest in my progress, offer valuable insights and most importantly not hold back as far as providing words of encouragement was concerned. Tusen takk! In addition, the cover of this thesis would be blank were it not for the cre- ative efforts of Simon Dobrzynski and Indra Jungkvist. Thank you both for all the time spent on enhancing the graphic impression of this thesis. A huge thank you also to Laura Chadwick, who on extremely short notice agreed to proof read my thesis, providing valuable input and improving the overall im- pression of the text markedly. Your assistance with this thesis was invaluable! All mistakes in this text should be attributed to changes made by me after it was proof read. I would also like to thank the staff of the Stockholm University libarary for helping with the production of this thesis. On a more personal note, I would like to thank my in-laws, Kalle and Eva- Lii, for making life a lot easier in many respects since I moved to Sweden. Many thanks also to Indra and Simon for the warmth you have both shown over the years. Finally, a special thank you to my wife and soulmate Anna, for the love and companionship over the years. You have always been positive about this project even when faced with a partner that has on occasion been ‘a little less positive’. Thank you for polishing the cover texts and Swedish trans- lation – when it comes to working with text, you are in a class of your own. Thank you also for bearing the major load of family life during the run up to the completion of this thesis. Finally, I would probably not have survived this excruciating process were it not for my children Levi, Nomie and Jonah. Your mere existence has constantly put things into perspective and reminded me that this is just a thesis, nothing more! Stockholm, 24th April 2017. Stanley Greenstein Contents 1 Introduction .................................................................................. 21 1.1 Problem Identification............................................................................. 22 1.2 Overall Objectives ................................................................................... 26 1.3 Research Questions ................................................................................. 29 1.4 Method and Material ............................................................................... 30 1.5 Definitions ................................................................................................. 41 1.6 Perspectives ............................................................................................. 48 1.7 Scope and Delimitation .......................................................................... 52 1.8 Previous Research ................................................................................... 55 1.9 Positive Aspects of Predictive Modelling .............................................. 61 1.10 The Dangers Associated with Predictive Modelling ...................... 64 1.11 Structural Overview ........................................................................... 68 2 ‘The Black Box’ ............................................................................. 69 2.1 Introductory Remarks ............................................................................. 69 2.2 The Predictive Modelling Process Outlined .......................................... 70 2.3 The Development of Technology .......................................................... 74 2.3.1 The Features of Data ...................................................................