Benjamin Bestgen

Legal television like My Cousin Vinny, Silk or The Good Wife is sometimes used to exemplify courtroom dos and don’ts – the first one having received particular acclaim for accuracy (for US purposes).

Judges are central to courtroom drama. Litigators obsess about which judge is presiding over their trial and how to deal with that person. Judicial prejudices and idiosyncrasies are discussed at length. In the US, biographies of important judges are studied by trial attorneys.

This runs contrary to our law school teachings, where students learn that lawyers (judges especially) reason dispassionately: they look at the case’s facts, then the law, apply the relevant laws to the facts and arrive at a reasoned conclusion. Therefore, similar cases should have similar outcomes. The “human factor” receives comparatively little attention.

In my own short litigation experience as a trainee appearing in Edinburgh and Glasgow Sheriff Courts, most judges seemed neutral to me – know your case, speak clearly, be courteous to everybody and you’ll be fine.

Others had a reputation for being rude, difficult or unpredictable and any positive or merely uneventful experience with such judges was chalked up to good digestion, sleep or other carnal pleasures these arbiters of justice may have benefited from before court.

Judges’ digestion

Philosophically, Legal Realism’s approach demands that any analysis of law should use scientific methodologies and study law as moral, psychological and social phenomena. People asking legal questions want to know what officials administering the law will actually do, i.e. if law is a good predictor of their present and future actions.

Critics of Legal Realism deride it as being theoretically confused, narrow and the “gastronomical school of jurisprudence”, seeking to predict judicial decisions by studying “what the judge had for breakfast”.

Canadian jurist Dan Priel found that Legal Realists indeed referred to connections between digestion and judicial decision-making but that such ideas were older than Legal Realism itself. Throughout the 19th century, the idea of a link between a person’s diet and mental state was popular (as it is again today). It was likewise commonly believed that sentencing tendencies of judges are influenced by a judge’s psychology, education, social class, health and even daily mood-swings (some of which can be attributed to sleep, digestion etc.).

Early scholars trying to empirically investigate this were discouraged by colleagues, “[…] not because it was too heretical, but because it was too obvious.” (Priel 2017).

Indeed, a study from 2011 on parole hearing outcomes in Israel concluded that judges’ decision-making was measurably influenced by hunger and fatigue: judges ruled most favourably in the early morning and shortly after their lunch break, while petitions just before lunch or later in the day were more likely to be declined.

This will not surprise any litigator who had to deal with a tired or hangry judge: judges are people, after all.

Why care?

Alabama Justice Thomas Minott Peters noted in Ex p. Chase, 43 Ala. (1869), at 311: “Trifles, however ridiculous, cease to be trifles when they may interfere with a safe administration of the law.”

The safe administration of law is not limited to courtrooms and lawyers but includes government, parliament, civil service, immigration caseworkers, licensing/planning committees, estate administrators, tax advisers, regulatory bodies, police and many more.

Trifles like our diet, health, mental state, prejudices, preferences and attitudes matter when we think about and work with the law, be it in an advisory, judicial, executive or legislative capacity.

If we accept that the safe and reliable administration of law concerns an important part of the very fabric of our society, a question for each of us should be: am I in the right state of mind to do legal work? Am I hungry, tired, distracted, angry, prejudiced against a party or ideologically opposed to what I’m tasked with?

Whatever criticism can be levelled against Legal Realists, they deserve credit for refocussing the study of law from formalistic ivory towers to a matter of human affairs.

Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.