According to The Economist (and others), the old adage “what the judge ate for breakfast” should instead be “how recently the judge ate.”
We’ve probably all heard that justice is “what the judge ate for breakfast.” Although typically invoked to explain to a confused 1L the inexplicably divergent outcomes in otherwise indistinguishable cases (if I may unscientifically extrapolate from personal experience), this caricature of legal realism might actually have some merit. Researchers have discovered that meals, or in the very least breaks, might very well determine a litigant’s fate. (Judge Jerome Frank of the Second Circuit, often credited for this candid “breakfast theory,” would be proud. Perhaps even Justice Oliver Wendell Holmes would feel some satisfaction. For a cynical view, see a speech by Ninth Circuit Chief Judge Alex Kozinski.)
To be clear, the researchers discovered that it wasn’t so much what the judge ate but rather when the judge ate (relative to the determination). Nonetheless, this study is obviously troubling. According to the research, your chances of success hinge quite significantly on a wholly arbitrary factor: how recently your decisionmaker ate or took a break. Remarkably, in this case it wasn’t the individual’s underlying crime, time served, gender, or ethnicity. It was, scientifically speaking, the temporal proximity to the meal or break.
Studying over 1,000 judicial rulings by eight Jewish-Israeli judges presiding over two different parole boards, the study reaches this conclusion. And we’re not referring to minor disparities. Take a look at the graph — when would you like your claim heard? As graphically depicted, your chances could drop from approximately 65% to practically 0% — all depending on when, not what. If that ain’t troubling, well, what’s the point of the hearing?
Is the lesson of this study that litigants should feed judges? Probably not, but I suppose it would help your chances.
Nutrition for the needy has long been a staple civil right: take the school lunch program, or WIC benefits. Perhaps it is time to consider a reduced-cost breakfast and lunch program for judiciary members as well as a results-driven social justice issue. We could call it FFFTB: Federal Food for Thought Benefit.