Research Paper Number

2982716

This paper is available from SSRN.

Document Type

Article

Publication Date

2017

Keywords

Legal realism; Karl Llewellyn; Jerome Frank; Adjudication

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.

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