Priel on Law and Digestion: A Brief History of an Unpalatable Idea

Dan Priel, Osgoode Hall, has published Law and Digestion: A Brief History of an Unpalatable Idea. Here is the 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.

Download the article from SSRN at the link.

Law and the Modern Mind

Concurring Opinions features discussion of a recent symposium centered on Susanna Blumenthal's Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (Harvard 2016).

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Barzun on Jerome Frank, Lon Fuller, and Romantic Pragmatism

Charles L. Barzun, University of Virginia School of Law, has published Jerome Frank, Lon Fuller, and a Romantic Pragmatism as Virginia Public Law and Legal Theory Research Paper No. 6. Here is the abstract.

Jerome Frank and Lon Fuller are not frequently classed together in discussions of twentieth-century legal thought. Although they both wrote extensively about the nature of law and adjudication over roughly the same period of time (1930s-1950s), they are typically characterized as standing on opposite sides of the issues that matter most in legal theory. Frank is these days seen as an “extreme” realist, who thought judges decided cases on the basis of irrational biases, while Fuller is best known for being a critic of realism, a defender of natural law, and an influential member of the Legal Process school of legal thought, which is itself seen as a response to precisely those excesses of realism that Frank is said to epitomize. In this essay, I argue that when we place these two thinkers on opposite sides of the traditional lines drawn in legal theory – between realism and process theory, natural law and positivism, instrumentalism and formalism – we miss something important, and importantly similar, in their views about law, adjudication, and human knowledge. In particular, both thinkers maintained (1) that the human self was constituted by a mix of impulses, intuitions, emotions, motives and purposes, only some of which are conscious but all of which shape how the mind perceives the external world; (2) that such motives in judges are activated by the facts of particular cases in a way that can, at least sometimes, serve as the basis for just decisionmaking; and, finally, (3) that the first two observations provide a foundation for legal knowledge of the sort judges properly rely on when deciding cases. I conclude by suggesting that we might think of these common themes as reflecting a “romantic” strain of legal and philosophical pragmatism.

Download the article from SSRN at the link.