Law and Digestion: A Brief History of an Unpalatable Idea

12 Pages Posted: 12 Jun 2017 Last revised: 20 Jun 2017

Dan Priel

York University - Osgoode Hall Law School

Date Written: June 7, 2017

Abstract

According to a familiar adage the legal realists equated law with what the judge had for breakfast. As this is sometimes used to ridicule the realists, prominent defenders of legal realism have countered that none of the realists ever entertained any such idea. In this short essay I show that this is inaccurate. References to this idea are found in the work of Karl Llewellyn and Jerome Frank, as well as in the works of their contemporaries, both friends and foes. But I also show the idea is older than the legal realists. One finds casual references to it in academic literature and newspapers from around that time, which suggest that the phrase reflected something of a received, if cynical, wisdom. Although none of the realists ever studied the question seriously, I further explain how it fit within their views on law, as well as how it might be tested today.

Keywords: legal realism, Karl Llewellyn, Jerome Frank, adjudication

Suggested Citation

Priel, Dan, Law and Digestion: A Brief History of an Unpalatable Idea (June 7, 2017). Available at SSRN: https://ssrn.com/abstract=2982716

Dan Priel (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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