2.2. Jurimetrics
3.2.1. The three areas of Jurimetrics research
While interested in strongly demarcating it from jurisprudence, Loevinger refuses to give a systematic definition of the tasks and object of research of Jurimetrics. As he points put in his 1963 article, a precise definition of such discipline is
462 Ivi, pp. 478-479; along these lines, Frederike Beutel proposed to establish an “experimental jurisprudence” based on the transfer of "the techniques and knowledge so successfully developed in the physical sciences […] into the field of social control”, see Frederick K. Beutel, Some Potentialities of Experimental Jurisprudence as A New Branch of Social Science, University of Nebraska Press, Lincoln, 1957, p. 4
463 Lee Loevinger, Jurimetrics. The Next Step Forward, cit., p. 482
464 Ivi, p. 470
465 Here Loevinger’s reference point is the just published work of Norbert Wiener, Cybernetics, or Control and Communication in the Animal and the Machine, Wiley, New York. 1948
466 Lee Loevinger, Jurimetrics. The Next Step Forward, cit., p. 471
467 Ivi, p. 472
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“unnecessary, and perhaps impossible” since “[a]s in any pragmatic discipline, the definition will be given by the activities of its practitioners”468.
An attempt to coordinate the field of research was made by Hans Wolfgang Baade, who in 1963 collected and edited in the volume Jurimetrics a first set of research experiences. After having premised that “field is presumably as vast as the law itself”, Baade identifies the three main area until then explored by Jurimetrics as
“electronic data storage and retrieval; behavioral analysis of decisions; and the use of symbolic logic” 469.
While the first area of research essentially overlaps with the already diffused paradigm I have referred to as “documentary” use of computers, that of storing and retrieving information470, the “law and logic” research is more specifically expressive of Loevinger’s thesis. As seen in the previous paragraph, Loevinger did not see legal decision making as logic-driven activity. Then, Jurimetrics logic research is not aimed at explaining human legal reasoning, but to correct and channel it. To put it differently, the interest in logic is not that much in human logic, but in computer logic. While lawyers can go along with concepts and procedures that, being rooted in jurisprudence, are vague and conflicting, computers would immediately show potential inconsistencies. Indeed, as Loevinger had indicated since his 1949 article, machines operate logically and therefore only what obeys the laws of logic can be put into a machine. That which is computer’s only “inescapable theoretical limitation”, i.e., that “every term and operation must be made explicit and nothing can be presumed, assumed, implied, or based on intuition” becomes, in this perspective, not a bug, but a feature: the possibility to encode into the computer is seen as a logical test case471. The research in logic are directed precisely towards the exploration of the methods for disambiguating and correcting the illogicity of human law.
This approach is exemplified by the work of Layman E. Allen, the precursor of legal design. Assuming that “[a] large amount of the litigation based on written instruments […] can be traced to the draftsman's failure to convey his meaning clearly”, Allen directs his concerns to the forms of uncertainty in legal language that are not deliberate - the cases of “inadvertent ambiguity”472 or “drafting ineptitude” - and to the need to minimize the “necessity for judicial legislation”473.
468 Lee Loevinger, Jurimetrics: The Methodology of Legal Inquiry, cit., p. 8
469 Hans W. Baade, Foreword, in Id. (ed.), Jurimetrics, Basic Books, 1963, pp. 1-4
470 The volume edited by Baade contained the article William B. Eldridge, Sally F. Dennis, The Computer as a Tool for Legal Research, in Hans W. Baade, cit, p. 78; Loevinger discusses the project
“Lex” he was developing at the Antitrust Division's and systems for the micro-image storage of documents Lee Loevinger, Jurimetrics: The Methodology of Legal Inquiry, cit., pp. 22; 26
471 As Loevinger puts it “[…] computers can do anything we tell them to do; their only absolute limitation is our ability to provide instructions. Even this limitation has uses, for it permits us to test the clarity and consistency of our own thought and expression”, Lee Loevinger, Jurimetrics: The Methodology of Legal Inquiry, cit., pp. 31-32
472 Layman. E. Allen, Symbolic Logic: A Razor-Edged Tool for Drafting and Interpreting Legal Documents, in The Yale Law Journal, 1957, 5, p. 833
473 Ivi, p. 878
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The solution he advances is the adoption of legal documents drafting techniques centred on “a compromise between expression in ordinary prose and expression in the mathematical notation of symbolic logic”474: a syntactic normalization of norms realized by substituting connectives with logical operators and by representing the structure of the norm in a conditional form475.
The third approach identified by Baade, that of quantitative predictions is the area of research that best expresses the behaviouristic underpinnings of Jurimetrics and the critical attitude towards legal practice. In the perspective of behaviourists, as it may sound ironical for the contemporary reader, the problematic black-boxes that it was time to open were the judges’ mind, and data-driven predictions were seen as the mean to address such problem476.
The leading scholar of the field is identified in Glendon A. Schubert, one of the most “active in the effort to introduce behavioral science to legal studies”477. In the many research he conducted at the turn of the Sixties478, Schubert was interested in explaining the political behaviour of judges through the empirical and quantitative toolbox. As Sydney S. Ulmer highlighted, contrary to most of the fields in which social scientists operate, the behaviourist methodological approach was particularly suited for the field of law, as distinguished by a great quantity and availability of relevant data systematically recorded
For it is well known that some forms of data, when collected in sufficient quantities, will reveal certain patterns or regularities. These regularities have analytical value.
Once observed, they may be projected into the future in a predictive fashion. The lawyer, like everyone else, proceeds in this fashion. But if stare decisis is his guiding principle, he may base his prediction on one or a few cases in which decision went his way. It is beyond dispute at this point in time that with such an approach, precedent can be found for almost any point of view, either directly or by analogy. It is possible that a focus on regularized patterns of data or behavior provides a safer predictive route479
Along these lines, the research of Fred Kort aimed at identifying and expressing in mathematical terms a set of factual elements considered as having influenced the decisions of courts in determinate area of judicial review. Through such formalization, Kort aimed at producing accurate prediction of the decisions in the
474 Ivi
475 Layman E. Allen, Towards a Normalized Language to Clarify the Structure of Legal Discourse, in Antonio A. Martino (ed.), Deontic Logic, Computational Linguistics and Legal Informaton Systems, North-Holland Publishing, Amsterdam, 1981, p. 349
476 Cfr. Micheal A. Heater, Legal Structures for Law Machines, in Costantino Ciampi (ed.), Artificial Intelligence and Legal Information Systems, North-Holland, Amsterdam, 1982, p. 120
477 Walter Berns, Law and Behavioral Science, in Hans W. Baade (ed.), cit., p. 188
478 Glendon E. Schubert, The Study of Judicial Decision-Making as an Aspect of Political Behavior, in American Political Science Review, 1958, 52, p. 1007; Id., Quantitative Analysis of Judicial Behaviour, The Free Press, Glencoe, 1959; Id. (ed.), Judicial Decision-Making, The Free Press, Glencoe, 1963
479 Sidney S. Ulmer, Quantitative analysis of judicial processes: some practical and theoretical applications, in Hans W. Baade (ed.), cit., pp. 166
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remaining cases of the area of research selected. Such empirical analysis, as Kort underlines, is totally indifferent to "what the Court said by way of reasoning"480.