It seems to me that an underlying assumption in this line of thinking is that there are no reasons for choosing one ethical norm over another and that, ultimately, value judgments are capricious.

I don't think that arguing about ethical judgments is any less disempowering than relying on a lawyer to make arguments about transcendental nonsense.

-- MichaelDignan - 29 Jan 2009

At the very least, doing away with transcendental nonsense arguments would make prominent legal decisions more transparent to the public.

-- MichaelDignan - 29 Jan 2009

This post is in response to Andrew's post above. Calabresi & Melamud also note societal norms of wealth distribution as potentially valuable in making functionally sound decisions in torts and property. I like this concept, and I think the courts can, if they choose, make significant changes to structural inequities which elevate some groups at the expense of others. Unfortunately for me, I doubt that most judges share my views about wealth distribution. In fact, as a group, I would assume that judges have a lot invested (intellectually and financially) in maintaining the status quo. This doesn't, however, explain a doctrinal development like enterprise liability, which has had significant distributional effects.

-- WalkerNewell - 28 Jan 2009

This makes more clear the link between Holmes-Cohen pragmatism and the law & economics school that dominates at least Contracts and Torts at CLS. The outcome that we are taught is 'desirable' always favors economic efficiency. Can we harness the decision-making process but put other goals in place? What would the goals be? How would we convince judges to value them?

-- AndrewCase - 28 Jan 2009

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

• 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.

• 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

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This post is mostly about the interplay of social science and value judgments in Cohen's realistic adjudication. Just to get us started, here's how he describes the realistic judge:

"The realistic judge, finally, will not fool himself or anyone else by basing decisions upon circular reasoning from the presence or absence of corporations, conspiracies, property rights, titles, contracts, proximate causes, or other legal derivatives of the judicial decision itself. Rather, he will frankly assess the conflicting human values that are opposed in every controversy, appraise the social importance of the precedents to which each claim appeals, open the courtroom to all evidence that will bring light to this delicate practical task of social adjustment, and consign to Von Jhering's heaven of legal concepts all attorneys whose only skill is that of the conceptual acrobat." (842)

I think we can distill the above description to the following simple instructions:

(1)employ the best available social-scientific research—psychology, economics, political science, etc.—to figure out the consequences of each possible ruling.

(2)Choose the ruling which will yield the most desirable outcome, in light of the evidence obtained in (1).

The key word in (2) is “desirable”; step 2 is a value judgment. The judge makes this decision alone, or in panels of three or nine, as the case may be. In fact, Cohen's two-step process looks a lot like the legislative process. The difference between the court and the legislature, however, is that the people delegate the business of making public value judgments to the latter via elections. Some judges are elected, but many aren't. The Supreme Court is much further removed from the people than the legislators. 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.

Despite his obvious concern with judges deciding the people's values, though, I have a feeling that Cohen was not too worried about the anti-democratic implications of judicial realism, however. I'm speculating now, but perhaps he thought those implications would work themselves out with a little time. Early social scientists probably believed that the human problems which had traditionally been dealt with theologically or philosophically could be done away with once we applied the scientific method—just as we got a whole lot 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). In spite of what we can infer to be the initial failures of the social sciences to predict outcomes accurately, Cohen maintains faith in their eventual efficacy.

So I am guessing that Cohen probably thought that the issue I have raised—judges exercising arbitrary moral authority—would eventually fade as the social sciences did a better and better job of mapping human behavior and predicting outcomes. Psychology would eventually 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 the judge, armed with the scientific method, would be perfectly competent to add up the facts.

Of course, it hasn't exactly happened this way. Decades later, with the social scientific paradigm increasingly prevalent, we still are 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. Economics may even help us solve global warming. 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), or measure the cost of pursuing one good at the expense of others, 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 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.

I've pointed out a problem with Cohen's theory, but it's hard to deny that scientific methods are useful to judges, and there does seem to be something to Cohen's demystification of transcendental legal concepts. It would be worth exploring the steps that could be taken to mitigate the anti-democratic implications of a realistic court. Consider the Supreme 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.