Page 141 - Courting the Media Contemporary Perspectives on Media and Law

132 Geoffrey Sykes

and science; and the experience and behaviour of participants in legal
domains. Kort‘s paper helps clarify the status of mathematical formalism and
the behavioural assumptions about legal decision.
Fred Kort introduces his work as a minor but pioneering ―attempt‖ to
apply quantitative methods to the depiction and prediction of human events
that generally have been regarded as highly uncertain, namely, decisions by
―at least one area of judicial review‖, the Supreme Court of America.
Ambiguity of understanding about the use of mathematical techniques is
signalled. On the one hand, there is the agenda of legal realism, to depict legal
processes informally and behaviourally, as social and ―human events‖ that are
―highly uncertain‖, and serve to qualify the formalism of legal decisions. On
the other hand, he contests suggestions that substitutional formalism of
quantification automatically will help predict, and hence apparently reduce,
uncertainty. The theme of the distinction between quantitative, mathematical
techniques and conventional legal reasoning is repeated when Kort discusses
the area of law that he has selected for investigation. The ―right to counsel‖
area was renowned for the irregularities of judgements by the Supreme courts,
concerning appeals from State courts where state counsel had been withheld
during criminal convictions.
In his introduction, Kort is explicit about some of the features of
quantitative techniques, which aim to identify the factual elements of some
cases of an area of law, to derive numeric values using formula and to predict
the decisions of remaining cases. He distinguishes his approach from other
kinds of conventional legal reasoning and hints at an implicit objectivism that
supplants and exceeds legal heuristics and will be made ―independently of
what Courts said by way of reasoning in these cases.‖
Kort speaks as a political scientist, positioning his research as externalist
and intervening in legal institutions: Kort is not a legal professional. Being
―independent‖ from legal institutions, he consciously adopts methods
uncommon in its internal practice to research the nature of court practices,
rules, procedures, norms, protocols, actors, precedents or setting. His unstated
public agenda is at least two fold: i) reform of policies of public law, which
will be achieved by ii) close monitoring of and feedback about the actual
decisions and behaviour of individual participants.
His techniques of factor, probability and social analysis are developed on
sociometric principles, independent and even unknown by the court practice in
which they are applied. Kort recognises opposition to quantitative methods by
legal practitioners as being overly objectivist and arbitrary, quoting Justices of
the Supreme Court as saying that ―the due process clause is not susceptible of