What the Judge Had for Breakfast: A Brief History of an Unpalatable Idea

20 Pages Posted: 12 Jun 2017 Last revised: 12 Nov 2019

See all articles by Dan Priel

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. However, the essay also shows that the idea is improperly attributed to the legal realists, as there are many references to it, in legal and non-legal sources, from long before the advent of legal realism. This suggests that the phrase has long reflected something of a received wisdom about adjudication. Tracing the question of the significance of digestion to one’s health, I argue that what we today take to be a humorous claim, may have been a much more serious one. For much of the nineteenth century it was widely believed that one’s health depended on one’s digestive health. Interestingly, this view is now once again taken seriously by scientists, which suggests that rather than scorn, the realists deserve credit for suggesting the question be studied seriously.

Keywords: legal realism, Karl Llewellyn, Jerome Frank, adjudication, legal history, law and psychology

Suggested Citation

Priel, Dan, What the Judge Had for Breakfast: A Brief History of an Unpalatable Idea (June 7, 2017). Available at SSRN: https://ssrn.com/abstract=2982716 or http://dx.doi.org/10.2139/ssrn.2982716

Dan Priel (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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