Digestive Jurisprudence Restated: On Breakfast and Digestion as Bias-Arousers

Abstract

“Digestive Jurisprudence” is the view that judicial decisions depend on what judges had for breakfast. The view is usually associated with Frank’s version of Legal Realism. The paper shows that, disputable as it is, that view comes from the philosophical background of Peirce’s pragmatism and the legal background of Holmes’ prediction theory. Peirce’s pragmatism was an account of concepts in terms of their predictable consequences. Holmes’ prediction theory was an account of law in terms of predictions of what judges will do. And Legal Realism focused on judicial behavior as determined by various factors including, in its most extreme and provocative version, breakfast quality and digestive processes. The paper does not ascertain whether the digestive view is true (to some extent); rather, it makes the working hypothesis that breakfast quality, or digestion quality, is not a sufficient condition of a certain outcome but, most likely, a bias-arouser.