Cohen's realistic judge can be distilled in two instructions:

(1)employ social-scientific research to figure out the consequences of each possible ruling. (2)Choose the ruling which will yield the most desirable outcome (this is a value judgment)

Cohen's two-step process looks like legislating from the bench, which gives rise to a potential countermajoritarian difficulty [link somewhere to a summary of this thesis]. But Cohen’s primary concern was probably in applying these instructions to yield positive results for our material problems and to do so “objectively” – using science to improve agriculture; psychology to understand human desire; economics to manipulate capital for utility maximization; and positive social scientific methodology to advance a more efficient legal education and less arbitrary judicial decisions.

Despite the help of science in improving our understanding of sexuality and spirituality, the legal realist still faces at least two perennial problems :

1. Conflicting values: Without objective metrics for value comparisons (I'm not sold on Happiness Formulas), the realistic judge must make subjective value judgments and usurp popular decision-making power –belying Cohen’s initial motivation in advancing legal realism.

2. conflicting social science evidence: judges can cherry pick data to justify personal policy choices – an unsurprising result given the proliferation of think tank –produced, ideologically self-reinforcing studies.

How can we mitigate the anti-democratic implications of a realistic court? Would term limits on Supreme Court justices bring court decisions closer to the people, or would a higher turnover rate lead to uncertainty about what the law is? More thinking is necessary.

-- MichelleChun - 28 Jan 2009

I thought this post was interesting. Above is an attempted edit. I haven't figured out how to do links though.

-- MichelleChun - 28 Jan 2009