Tuesday, April 19, 2011

Legal Realism: Justice is Best Served on a Full Stomach

Leading Legal realist Judge Jerome Frank is credited with the phrase that "Justice is what the judge ate for breakfast."  I have never tracked down that precise quote from him but perhaps it is drawn from this passage found at p.162 of my well worn copy of Courts on Trial:

Out of my own experience as a trial lawyer, I can testify that a trial judge, because of overeating at lunch, may be somnolent in the afternoon court-session that he fails to hear an important item of testimony and so disregards it when deciding the case. “The hungry judges soon the sentence sign, And wretches hang that juryman may dine,” wrote Pope.  Dickens’ lovers well remember Perker’s advice to Pickwick: “A good, contented, well-breakfasted juryman, is a capital thing to get hold of.  Discontented or hungry jurymen, my dear sir, always find for the plaintiff.”
I have long ago worked this concept into class asking student to consider what might happen to convicts sentenced in the afternoon after the judge had a bowl of 4-alarm chili.  Now an empirical study from Israel ties judges' decisions on criminal dispositions to the proximity the case action bears to the judge's break times. It appears that judges are more lenient after meals and breaks and less lenient the longer they sit on the bench following a break. I think Judge Frank would have flashed a wry smile at these results.

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Judge Milian must have had the 4-alarm chili! (But she was right)

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