CSI Effect

An earlier post contained a detailed description of the CSI effect.  But no one captures a concept with the humor and insight of John Oliver.

The Judge

Hey hillbilly miscreant, "you'd better thank God that your granddad's the judge."

Thought Provoking Law Quote: Judge Jerome Frank

Federal Court of Appeals Judge Jerome Frank was one of the leading writers in the Jurisprudence of Legal Realism. His 1949 work, Courts on Trial, is still relevant today as a critique on the ability of our trial system to effectively dispense justice.  From Chapter 6 of that work, The "Fight" Theory vs. The "Truth" Theory:

In short, the lawyer aims at victory, at winning in the fight, not at aiding the court to discover the facts. He does not want the trial court to reach a sound educated guess, if it is likely to be contrary to his client's interests. Our present trial method is thus the equivalent of throwing pepper in the eyes of a surgeon when he is performing an operation.

                                      -Judge Jerome Frank, Courts on Trial, 1949

Legal Realism: The Law Depends on What the Judge Had for Breakfast

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.”

What happens if the judge had a "dicey looking breakfast burrito this morning and just took an imodium?"  See the video below:

Speed Limit, 85 MPH ... or 90... Maybe 95 ... Going Once, Twice ...

In discussing the jurisprudential theories of Legal Realism, one of my prime examples is to ask students to think about speed  limits.  Speed limits are set by law.  The law may set the speed limit in an area at 25 MPH - but drivers rarely heed that law. It is well known that there is only a very small chance of getting a ticket for driving 26, or 27, or perhaps even 30. Driving faster than that increases the likelihood of  the driver becoming the subject of law enforcement action.  A Legal Realist considering these facts might argue that the speed limit law is not 25 at all, but 30. The words of the law may say 25, but the law in action imposes no penalty until 30.  Therefore, the conduct that results from law (both the written word and the system in action) is that people drive 30 MPH.  If law is based on the conduct that is shaped by imposing penalties, then the speed limit law is actually 30.

Then I found some verification in this story on CBS This Morning (Click on the image below to see the report):


More Legal Realism, here.