Page 16 / De iure September 2018
What If Justice
Wasn’t Blind?
While number crunching has
always been an important
part of the legal profession,
there has been little innovation
in the way it uses Big Data.
All that is about to change
however, as more advanced
analytics are finding their
ways into the legal world.
We speak to Prof. Ariel Porat
about personalizing default
rules and disclosure with Big
Data and the impact of one
of the greatest technological
revolutions of our time.
Where did the idea for personalizing
the law come from?
“From me, by way of inheritance law.
When a person dies without leaving a
will, the default for the division of the
estate is drawn in inheritance law. The
laws pertaining to these cases vary across
jurisdictions, but each country follows
a similar pattern. In Israel, the default
is usually 50% of the estate goes to the
spouse while the rest is divided equally
between the children. Then I heard
something interesting in a lecture given
by Prof. Daphna Hacker; she mentioned
a study carried out in the United States
showing that when women leave a will,
80% of the estate is given to the children
and 20% to the husband. However,
when the man leaves a will, the children
receive 40% while 60% goes to the wife.
You could ask why that is, and a possible
explanation is that at least from a certain
age, the husband knows that after his
death his wife probably won’t have other
biological children with another partner.
It stands to reason that the woman will
eventually inherit to his children, and he
would therefore have no qualms about
leaving her the lion’s share of his estate.
In contrast, the woman knows that in the
event of her death, her husband can have
children from other women at almost any
age. She might therefore be hesitant about
leaving the majority of the estate to him.
The point here is that there is an average
difference in the way men and women
behave when it comes to bequeathing
their property. So, why is the default
uniform for us all? If we believe the law of