(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.

The key word in (2) is “desirable”; (2) is a value judgment made by the judge. Cohen's two-step process looks a lot like the legislative process. Unlike the legislature, however, judges have not been elected to make public value judgments on the people's behalf. A Supreme Court Justice's power is significantly further removed from the will of the people than a member of the Senate. And the greater the distance between the people affected by the value judgments and the decision-maker, the less democratic the system. Nobody likes having their values decided for them.

I doubt that Cohen was worried about the anti-democratic implications of judicial realism, however. Cohen probably thought applying science to our cultural problems would yield the same positive results as it had for our material problems—we got much better at growing food once we stopped praying for rain and started plowing. I take Cohen to be expressing exactly this optimism when he writes of efforts to incorporate social science into the law schools: “The first steps taken are clumsy and evoke smiles of sympathy or roars of laughter from critics of diverse temperaments. The will to walk persists” (834). Cohen seems to have thought that once we applied the scientific method, step (2) would involve the measure of objective facts, rather than subjective values. Psychology would provide us with a very clear understanding of human desires, and economics would reveal how to manipulate capital to effectively maximize the fulfillment of those desires. Value judgments (often masked as transcendental concepts) would increasingly be displaced by factual ones as social science became more effective, and judges decisions would cease to be arbitrary expressions of power.

Things haven't exactly happened this way—we are still not sure how to get along with one another. Sure, there has been some progress: we can now use science to intelligibly explore our own sexuality, or even the nature of God, in pretty amazing ways. But nonetheless, we don't seem to be anywhere near the kind of systemization of human behavior which I believe would be necessary to democratically implement Cohen's legal realism. We may be able to better understand our sexuality or spirituality, but without the ability to objectively weigh these goods against one another (I'm not sold on Happiness Formulas), the realistic judge will inevitably be left to make subjective value judgments whenever conflicting values arise. And when judges decide people's values for them, it inevitably disempowers them. That's part of the reason why Cohen advocates legal realism in the first place.

Furthermore, social science often produces conflicting evidence. Judges today can pick and choose statistics to justify their own policy choices just as easily as acrobatic judges in Holmes' day could pick and choose their transcendental legal concepts. In a world where ideologically-aligned think tanks generate studies to justify prior positions, this comes as no surprise.

It would be worth exploring the steps that could be taken to mitigate the anti-democratic implications of a realistic court. Imposing term limits on Supreme Court Justice positions might bring the decisions of the court a little closer to the people, but a higher turnover rate on the Court might lead to decreased certainty as to what the law is. It seems like there's a lot of this kind of thinking to do, at all levels of the judicial system.

• This statement contains some ideas that are valuable to consider, but it is three times as long as it needs to be to present those ideas. Someone should edit it to present the substance in a more accessible form.

-- MichaelDreibelbis - 27 Jan 2009