Page 143 - Courting the Media Contemporary Perspectives on Media and Law

134 Geoffrey Sykes

approach, not a cognitive or systems approach that might advocate expert
systems or artificially programmed decisions.
Likewise Kevelson does not argue for fully automated or mechanical law,
or so called ―expert systems‖ as part of her general inquiry. Under certain
terms, mathematical methods can provide an efficient determination of
administrative and case decisions, in areas such as court administration and
insurance claims, and in easy or routine cases can substitute for human
decision making. Yet such methods need to be used selectively, within a multi
dimensioned array of methods and systems supplementing and assisting
professional work, rather than substituting for it. Peirce would regard such
predictive use of algorithmic or logical reasoning as being in the state of
Seconds, where values are readily determined and reasoning meta-indicative
or deontic by nature, so that clear and efficient outcomes can be observed.
Mathematics can as readily accommodate and correlate the uncertainty
that features in practical or pragmatic reasoning, and seek to acknowledge and
factor in, not reduce nor disguise, indeterminacy and complexity in decision
making, which results in fairness and accountability. Fairness does not
necessarily come at the cost of simplicity, cost savings or efficiency.
Kort justifies his own approach in terms of a criticism of sequential,
statutory, verbal logic. In the absence of any provision in a constitutional
amendment, and consequent mandatory obligations on states, the exercise of a
right to counsel depended on doctrines of ordered liberty and ―fair trial‖. Kort
quotes opinions about the area, about its ―nebulous standard‖ and ―arbitrary
and capricious rule‖. He quotes the main author on the topic, W. Beany, as
concluding that the ―fair-trial rule lacks the essential qualities of a good rule of
law: clarity of meaning, facility of application, and satisfying results‖. Thus he
questions how well general values of social justice and fairness can be
practised in the absence of ―essential qualities‖ of the good rule of law [1957].
Because of the difficulties of finding a pattern and predicability using
―conventional methods of qualitative appraisal‖ by Supreme court judges, Kort
uses quantitative methods. Although his methods might appear a panacea to
conventional legal reasoning, Kort at no stage seeks a complete substitution.
His aim can be seen to correspond to that of Kevelson and Peirce, to provide
an alternative mathematical, iconic expression of verbal logic that will
supplement better the ―qualitative‖ reasoning of verbal decisions. Unlike
Peirce, Kort does not supply a full behavioural rationale or theory of inference;
he fails to account fully to the audience for his research. How can its
conclusions and method be communicated or used? Are his methods intended