Page 151 - Courting the Media Contemporary Perspectives on Media and Law

142 Geoffrey Sykes

applications, that will overcome simplified notions of administration, decision
making and representation of legal material, and will best articulate the
potential and emerging uses of complex, multi faceted media forms.
In considering conditions whereby a fact in a Connecticut workmen's
compensation case will be admitted as the basis for a successful appeal to the
Supreme Court, Kort asserts that up to a billion possible combinations of rules
are possible. The number of examinations of conditions required and involved
by human inference is prohibitive. The use of shorthand operators to describe
linear combinations of conditions might document routinised symbolic rules,
or assemblages of predictable indexes, or as Peircean Seconds, may involve
―reasoning with words‖. But such iteration by no means models the process of
associative calculation that is potentially involved in the interpretation of
discretionary statutory expression. Nor does the extensive written
representation and over interpretation of vague discretion provisions prove at
all efficient or helpful to actual judicial use.
An explicit semiotic rationale, parallelling the development of Peirce‘s
mature work, would clarify Kort‘s sceptical inquiry about logic and research
generally. Kort‘s more articulate interrogation of his own empirical method
can be regarded in a clear and paradoxical differentiation of ―Boolean‖ and
―statistical‖ mathematical methods. The ‗facts‘ of an individual case are to be
perceived in relation to other cases in complex fields of multiple cases. These
relations can be viewed in a dynamic, hypothetical way. The numeric
reasoning does not only represent behaviour, in a first indicative intention, to
be generalised in one preferred or objective outcome for the jurisdiction, but
provides a basis for changes in judicial behaviour. Kort‘s work optimises
indeterminacy: ―mathematical and statistical methods‖ are advocated as an
alternative analytic and abstract ―formulation‖, for problems that cannot be
adequately solved using traditional methods.
The use of a statistical method such as nearest neighbour routines is
convincing. The more factors considered and involved in a case, the more
complex its representation, the more probability it has of being reversed. That
is, judgment is sensitive to the form of the representation of the case. The
Supreme Court was found to exercise tolerance of the number of factors it
would allow before a critical, breaking point was reached, when the judgment
was reversed.
Further, statistical conclusions provide a complex means that assess the
reliability or otherwise of existing judgments. Reliability was found to exist
despite changes in the composition of Supreme Court judges over a period of
time, and despite the social and intellectual background of individual judges.