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Public Law & Legal Theory


The Empirical Legal Studies (ELS) movement is making strides toward understanding judicial behavior, and ELS models could become the foundation for more accurate prediction of judicial decisions. This essay raises two questions associated with this development. First, what would an age of predictable judicial behavior look like? Second, would satisfying the informational needs of ELS prediction models also exhaust the demands for “judicial transparency”? My conclusions are that a state of predictable judicial behavior, if somehow stable, would leave almost no litigation to observe; and that a prediction-oriented information policy would nearly meet the demands of today’s transparency advocates. One shortfall involves the intrinsic/consumption value of adjudication for intellectuals and others. A prediction-oriented policy would not meet that demand and could even thwart its satisfaction—which presents an unappreciated normative choice for information policy.



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