Review: Quantitative Methods and Legal Decisions

In the last century, legal scholars have expended considerable effort exploring the foundations of the law. Legal historians have exhaustively examined the sources of legal institutions and legal doctrines.' Philosophers of law have inquired extensively into the nature of law and legal argument in attempts to explicate the basis of legal duties and their relationship to moral duties.2 In the course of these endeavors, however, relatively little attention has been paid to how and to what courts and legislatures know.3 Until recently these questions of knowledge have been answered only implicitly. The judicial process, for example, has followed a model of using common sense and community wisdom as the basis of how and what is known. Thus, the courts have assumed that the task of finding the facts to which the law must apply should be assigned to juries of twelve people, who are to draw upon their experience and knowledge. Similarly, when a judge must make broader findings of fact, he does so by taking judicial notice of facts that, because they are so commonly recognized, are beyond dispute. The model of legislative action ordinarily accepted is that the interplay of interest groups sifts the relevant facts and leads the legislators to the appropriate result. In those few embarrassing areas in which the need for technical knowledge has been overwhelming, decisions have been consigned to administrative agencies with appropriate technical staffs, and the results often ignored. The interplay between knowing and judging and between knowing and legislative valuing can no longer be ignored by legal