Abstract
Justice Holmes’ famous statement that “the life of the law has not been logic: it has been experience” 1 has had a profound effect on contemporary American jurisprudence. Holmes’ monumental influence, together with the impact of positivism, American pragmatism, and more recently, psychoanalysis, have all played important roles in shaping the development of American legal realism.
... The constant development of unprecedented problems requires a legal system capable of fluidity and pliancy. Our society would be straitjacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of everchanging social, industrial, and political conditions; although changes cannot be made lightly, yet law must be more or less impermanent, experimental and therefore not nicely calculable. Much of the uncertainty of law is not an unfortunate accident: it is of immense social value.
Jerome Frank
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References
Law and the Modern Mind 6–7 (1930).
The uniquely American contribution of Jerome Frank to a philosophy of legal realism is illustrated by the fact that he did not rely on the contributions of European, Latin American, or Scandinavian legal realists, though the work of the latter school has been noteworthy and seminal. E.g., see Axel A. T. Hägerström, Inquiries Into the Nature of Law and Morals (Uppsala: Almquist & Wiksell, 1953); Anders V. Lundstedt, Law and Justice (Stockholm: Almquist & Wiksell, 1952) and Legal Thinking Revised: My Views on Law (The Hague: M. Nijhoff, 1957); Karl Olivecrona, Law as Fact (London: Oxford Univ. Press, 1939); Lundstedt and Olivecrona in Interpretations of Modern Legal Philosophies 450, 542 (Sayre ed. 1947); Alf Ross, Towards a Realistic Jurisprudence: A Criticism of the Dualism in Law (Copenhagen: Munksgaard, 1946) and his two articles, “Tû-Tû,” 70 Harv. L. Rev. 812 (1957) and “Legal Norms and Norms of Chess,” 8 Osterr. Zeitschr. f. öffentl. Recht 477 (1958); Frede Castberg, Problems of Legal Philosophy (London: G. Allen, 1958 ed.); for recent discussion of their work, see Jerome Hall, “Reason and Reality in Jurisprudence,” 7 Buffalo L. Rev. 351, 372–80 (1958); Benvenuto Griziotti, “The Principle of Realism in American and Modern European Jurisprudence,” 18 La. L. Rev. 1 (1957); and Barna Horvath, “Between Legal Realism and Idealism,” 48 Nw. U. L. Rev. 693 (1954). However, Frank did recognize the value as well as dangers of comparative law, as evidenced in his article, “Civil Law Influences on the Common Law — Some Reflections on `Comparative’ and `Contrastive’ Law,” 104 U. Pa. L. Rev. 887 (1956).
According to one writer, Professor Edward McWhinney of the Law Faculty of the University of Toronto, the United States Court of Appeals for the Second Circuit ..was widely regarded in the United States (and also in other Common Law countries) as the ‘strongest English-speaking court’. This was in the form of a tribute to the extraordinary quality of the personnel of the Court which included at the time Learned Hand, Augustus Hand, Thomas W. Swan, and Charles E. Clark and also a recognition of the fact that since the passage of the Judiciary Act in 1925 and the practical confining of the United States Supreme Court to public law matters, the United States Courts of Appeal have become in effect the final appellate tribunals for American private law questions.“ McWhinney, ”Judge Jerome Frank and Legal Realism: An Appraisal, 3 N.Y.L. Forum 113–114 (1957). While it is true that Frank derived much inspiration from the treatises and decisions of Justice Holmes, it is the author’s view that Judge Frank had a much more compassionate view of the human predicament than did Justice Holmes. Certainly Frank was not bound by the social Darwinian dogmas of biological determinism that characterized Justice Holmes in a decision like that of Buck o. Bell, 274 U.S. 200 (1927).
A colleague on the bench, Judge Charles E. Clark, confirmed this in a memorial to Frank, where he said: “… Judge Frank, although a gladiator of unusual power and adroitness, never seemed to harbor permanent spite of any form whatsoever. Indeed, I doubt if he realized how heavy was the impact of his intellectual blows. He was of a vast kindliness and good humor; so after a morning of almost mortal combat he would appear at lunch with new and lively tales of men and events or reports on the latest philosophical books which he read so voraciously….” Clark, “Jerome N. Frank,” 66 Yale L.J. 817, 818 (1957). Another superb example of Frank’s personality was the eloquent tribute given Judge Learned Hand in two lectures he delivered at the Yale Law School in 1955, and published posthumously under the title, “Some Reflections on Judge Learned Hand,” 24 U. Chi. L. Rev. 666 (1957).
The following are examples of reviewers who commended the work of Frank: “Judge Frank’s book is worth reading by mature persons who can distinguish the grain from the chaff and correct its lack of balance. It should not be recommended to the young and the immature, who may be tempted to swallow its lopsided theories as uncritically as the author himself has swallowed them.” William A. Robson, Book Review of Law and the Modern Mind, 21 Pol. Q. 411, 418 (1950). “I commend the book…for the author’s willingness to discuss his own shortcomings; for his shorthand attempt to place himself and other writers in the jurisprudential ‘schools’; for a psychological approach to judicial action, which though it may be too closely tied to behaviorism, properly emphasizes the ’gestalt’ in law; and for his rather canny observations on precedent, legislative interpretation, old axioms.” Harrop A. Freeman, Book Review of Courts on Trial, 35 Cornell L.Q. 943–44 (1950). “In our opinion, ’Law and the Modern Mind’ constitutes the most effective attack that has been made on legal fundamentalism….” Forrest R. Black, Book Review of Law and the Modern Mind, 19 Ky. L.J. 349 (1931).
Here are some examples of qualified criticism of Frank’s writing: “…The book is not well organized, the shots are often carelessly fired and wide of the mark, many of the shells are duds and some may act like boomerangs. This friendly criticism of an ally is all the more necessary because these defects are characteristic of our young liberals who, though they talk much about science and the methods of science, woefully neglect the art of close reasoning and seldom trouble to produce logically conclusive evidence for their contentions.” Morris R. Cohen, “Change and Fixity in the Law,” Book Review of Law and the Modern Mind, 133 Nation 259 (1931). 822 (1931). “Law and the Modern Mind is the most provocative stimulus to thinking on fundamental legal problems that has appeared in the Anglo-American literature of jurisprudence since Dean Pound’s Spirit of the Common Law…. All this is not to suggest that Law and the Modern Mind can be swallowed and digiested as it comes from the press. It must be washed and peeled, and there are unripe and over-ripe parts to cut out; it must be boiled and mashed and seasoned with a good deal of salt before it can safely be entrusted to a moderately sensitive legal stomach.” Felix S. Cohen, Book Review of Law and the Modern Mind, 17 A.B.A.J. 111 (1931).
Apropos Frank’s eclectic perspective and style of writing, the historian Richard Hofstadter has this to say in a review of Fate and Freedom: “…The product of a learned, cultivated and muscular intellect, it is a first-rate philosophical book for the layman, and will interest anyone who has ever pondered the problem of destiny versus freedom.” The New York Times Book Review, July 8, 1945, p. 5. Another reviewer wrote: “This little volume has a notable structural unity. Its perspective of the past is a tribute to the resourcefueness of its author. Its vision is a tribute to his genius.” Herbert D. Laube, Book Review of Fate and Freedom, 32 Cornell L.Q. 307, 309 (1946).
Rodell, Book Review of Courts on Trial, 25 Ind. L.J. 114, 115 (1949). Literary technicalities are apparently unimportant to an “eclectic” like Jerome Frank.
Roberts, Book Review, 98 U. Pa. L. Rev. 477 (1950). I agree with Roberts’ suggestion that the lay reader confine himself to pp. 419 ff. of the book for the kernel of Frank’s thought on law and related matters.
found that on the subject of legal education, for example, Frank wrote five articles, all of them alike in style of presentation and content, containing pretty much the same material. Most of these articles had initially been speeches. In another instance, the article, originally a speech, was reprinted in two journals under two different titles. Edgar H. Wilson, in a book review of Courts on Trial, takes Frank to task for his multiple use of the same materials in various articles, sometimes (he claims) as many as four. 1 Mercer L. Rev. 333, 335 (1950).
“Courts on Trial is in the Frank tradition; and it deserves to be regarded as a high point of that tradition. Would it had been the author’s first book! For them its main theme could receive that quiet attention which it deserves unobfuscated by boisterous controversies still echoing from Law and the Modern Mind. This new contribution to contemporary juristic thought deserves to be freed once and for all from past encumbrances.” Julius Stone, Book Review of Courts on Trial, 63 Harv. L. Rev. 1466 (1950).
This would not hold true of one of the most important of Frank’s ideas in Law and the Modern Mind,the psychological notion of law as a father-substitute. Time and time again, Frank has qualified his somewhat excessive devotion to this idea, and Courts on Trial is certainly evidence of an awareness of the exaggerated claims of his earlier writings. In the preface to the sixth printing of Law and the Modern Mind xiv-xv (1949), Frank made it clear that he had not made the differentiation between trial-court doings and those of upper or appellate courts plain enough in the first edition of 1930. He also pointed out in this 1949 preface that the failure of such writers as Pound, Morris Cohen, Dickinson, Cardozo, and Llewellyn to realize the distinctive operations of trial courts was the crucial difference between those thinkers and himself. Edmond Cahn feels that Courts on Trial differed markedly from Law and the Modern Mind, particularly in the area of Frank’s worship of Justice Holmes’ “prediction theory” of law. “…By 1949 when Courts on Trail was published, it began to be apparent that fact-skepticism either cancelled the value of Holmes’ theory or at least required a drastic reformulation.” Cahn, “Jerome Frank’s Fact-Skepticism and Our Future,” 66 Yale L.J. 824, 825 (1957). According to Cahn, Frank acknowledged this reformulation in his article, “A Conflict With Oblivion: Some Observations on the Founders of Legal Pragmatism.” 9 Rutgers L. Rev. 425, 447–49 (1954).
Courts on Trial 419–20 (1949). Reverse all of these axioms and you will get Jerome Frank’s legal philosophy. Frank thinks that points no. 17 and 18 are the “blind spots” in Roscoe Pound, whom he severely criticized in a long appendix to If Men Were Angels 332–49 (1942).
“… Interests, points of view, preferences, are the essence of living. Only death yields complete dispassionateness, for such dispassionateness signifies utter indifference…. The judge in our society owes a duty to act in accordance with those basic predilections inhering in our legal system (although, of course, he has the right, at times, to urge that some of them be modified or abandoned). The standard of dispassionateness obviously does not require the judge to rid himself of the unconscious influence of such social attitudes,” Frank, Courts on Trial 413. Also see Frank, “Mr. Justice Holmes and Non-Euclidean Legal Thinking,” 17 Cornell L.Q. 568 (1932); Law and the Modern Mind, 168; If Men Were Angels 119; and Fate and Freedom: A Philosophy For Free Americans (N.Y.: Simon & Schuster, 1945), pp. 39, 141, 216–17; Courts on Trial; Myth and Reality in American Justice 353–56, 365–73, 414–15; and his dissenting opinion in Hentschel v. Baby Bathinette Corp., 215 F. 2d 102, 112 n. 20 (2d Cir. 1954). For Frank, the difficult question is which of the interests or values is to be preferred over the other possibilities in any particular case. Cf., Felix Frankfurter, “Mr. Justice Holmes and the Constitution,” 41 Harv. L. Rev. 121, 132–33 ns. 33–34 (1927), and Mr. Justice Frankfurter’s concurring opinion in Public Utilities Commission v. Pollak, 343 U.S. 451, 466–67 (1951).
Cf., “Jerome Frank has written a penetrating analysis of our legal system as it actually operates, rather than as it is supposed to operate…. Judge Frank has given us his critical analysis. His enviable fertility gives promise that his constructive contribution will be forthcoming as well…” Ludwig Bendix, Book Review of Courts on Trial, 38 Calif. L. Rev. 782, 784 (1950).
Courts on Trial 422–23. Number 1 (e) does not include the major privilege rules, especially those relating to self-incrimination and evidence obtained by unlawful searches and seizures, which of course Frank wants to preserve intact. Numbers 1 (a) and 1 (b) are reminiscent of the continental European tradition of trial procedure.
Cf., “Shorn of the excesses of nominalism and psychiatric lore, Judge Frank’s Law and the Modern Mind did a great deal to awaken students of the law from a state of ivory-towered stupor; it illuminated many unexplored realities behind legal processes. Shorn of the excesses of `subjectivism,’ his Courts on Trial does a first-rate job of spotlighting a neglected area surrounding one of our most important institutions of law — the trial court….” Julius Cohen, Book Review of Courts on Trial, 17 U. Chi. L. Rev., 557, 559–60 (1950). See Charles C. McCarter, “The Jury System: A Twentieth Century View,” 4 Kan. L. Rev. 425 (1956), and Judge Leon R. Yankwich’s article, “The Art of Being A Judge,” 105 U. Pa. L. Rev. 374 (1957).
Courts on Trial 425. “…Philosophic inquiry at its outset is an agitating experience, charged with vertigo and sudden discomforts. Whoever engages in it in the skeptical manner that intellectual honesty compels will appear to be snatching away his neighbors’ familiar supports. Hence for some twenty years (since Law and the Modern Mind) Jerome Frank’s writings have met with two classes of readers: one, those whose disturbance led only to resentment; the other, those whose disturbance prompted them to reassess old assumptions, to grapple with new challenges, and to feel grateful for the light he had let into the dark shop. For the latter group and for anyone hardy enough to join them, the publication of Courts on Trial is an important event, because this is his most illuminating work.” Edmond N. Cahn, Book Review of Courts on Trial, 59 Yale L.J. 809 (1950).
Courts on Trial 425. Frank adds: “… J. S. Mill said that `when it is impossible to obtain good tools, the next best thing is to understand the defects of those we have.’ ” Ibid., note 15. Cf.: “Perhaps the thing most disturbing about the reading of Law and the Modern Mind almost two decades after its original publication is the fact that it still contains a message of such pressing urgency…. One suspects that the thing of continuing value in Law and the Modern Mind will be less the author’s answers to the particular questions propounded than the forthright manifestation of an attitude of mind and a point of view. To Judge Frank, self-delusion is the fundamental intellectual sin. Maturity of thought demands a constant effort to view the subject of inquiry unflinchingly in its full complexity. If thereby universal absolutes are found to be merely contingent and the security of false certainty is lost, the sacrifice must willingly be made….” Francis A. Allen, Book Review of Law and the Modern Mind, 44 Ill. L. Rev. 554, 556 (1949).
“…The author ought not to make the law more certain than it is. It is a bit too much like verity for Mr. Frank to insist that law wears the semblance of certainty because adults demand an infallible authority as a substitute for a discredited all-wise father…. It is by no means certain that the intellectual heritage of law — the conceptual attack, the deductive method of theology, the fashion of thinking of truth as an articulation of symmetrical propositions — does not share the responsibility. In any event, in a zestful adventure like this, where inquiry thrives upon uncertainty, the issue ought to be left open.” Walton H. Hamilton, “The Legalism of Law,” Book Review of Law and the Modern Mind, 65 New Republic 277, 278 (1931).
Courts on Trial 426. Cf., “…The significance of Law and the Modern Mind is lost if it is tagged simply as a charter for realistic jurisprudence (in fact Judge Frank later repented use of the word `realistic’); rather, it constitutes a subtle and learned application of pragmatic philosophy, in advocacy of an experimental, tentative, humanistic, approach to the `law.’ It is a ringing affirmation of the need for humility in the profession in the face of the elusiveness and transientness of social fact.” Malcolm A. Hoffman, “Old Wine,” Book Review of Law and the Modern Mind, 7 Fed. B.J. 223, 224 (1946).
Much of the criticism that has been levelled at Frank would also apply to the so-called school of legal realism; the reverse also holds true, but certainly not in every case. Most of my discussion in this chapter assumed that most of the errors of the major American legal realists applied to Frank as well, since he has always been considered an extremist among legal realists. So far as the critics (whether they are called non-or anti-realists) are concerned, the chief ones would be Pound, Dickinson, Fuller, Adler, Morris Cohen, Kennedy, Kantorowicz, Mechem, and Stone. Felix Cohen, who was considered a functionalist by some writers, was critical of certain aspects of legal realism. There are variations of outlook on all sides of the picture; hence, my rather arbitrary categorization should be understood at the outset. See, My Philosophy of Law; Credos of Sixteen American Scholars (1941) for short statements by such men as Bingham, Cook, Morris Cohen, Dewey, Dickinson, Fuller, Green, Kennedy, Kocourek, Llewellyn, Moore, Patterson, Pound, Powell, Radin, and Wigmore.
Karl N. Llewellyn, “Some Realism About Realism - Responding to Dean Pound,” 44 Harv. L. Rev. 1222, 1255–56 (1931). Also, see pp. 1260–64 for the details of Llewellyn’s point-by-point answer to Roscoe Pound’s earlier article, “The Call For a Realist Jurisprudence,” in 44 Harv. L. Rev. 697 (1931). Frank helped Llewellyn to write his article, but he did not jointly sign it. It is interesting to note that in Llewellyn’s answer to Pound, he includes such men as Clark, Corbin, Klaus, Lorenzen, Francis, Sturges, and Tulin within the general framework of legal realism. These two articles by Pound and Llewellyn constitute a significant part of the realist-functionalist controversy. For the views of earlier adherents to legal realism, see Joseph W. Bingham, “What is Law?” 11 Mich. L. Rev. 1, 109 (1912), and Arthur L. Corbin, “The Law and the Judges,” in 3 Yale Rev. 234 (new series, 1914). For a superb article on the history of American legal realism, see Llewellyn’s “On Reading and Using the New Jurisprudence”, 26 A.B.A.J. 300, 418 (1940), 40 Col. L.Rev. 581 (1940).
Frank, If Men Were Angels 278. Frank devoted a long Appendix V, entitled “Comments on Some Criticism of the So-Called ‘Realists,’ ” pp. 276–315, to a discussion of the attacks made on him and on other “realists.”
Id. at 283. Of course, Morris Cohen was not a lawyer, and never claimed to be. He was a logician and a philosopher almost all of his adult life and always approached the problems of law from that vantage-point. I would venture to say that in most respects, Cohen had more of the characteristics of the legal philosopher than Jerome Frank, but it must be remembered that Frank pursued several careers simultaneously and with brilliance.
Id. at 288. Cardozo’s paper was printed in 55 N.Y.S.B.A. Rep. 263 (1932), and repr. in his Selected Writings, edited by Margaret E. Hall (N.Y.: Fallon Publications, 1947), pp. 7–27.
On the question of a science of law, Ehrlich wrote: “…What men consider just depends upon the ideas they have concerning the end of human endeavor in this world of ours, but it is not the function of science to dictate the final ends of human endeavor on earth. This is the function of the founder of a religion, of the preacher, of the prophet, of the preacher of ethics, of the practical jurist, of the judge, of the politician. Science can be concerned only with those things that are susceptible of scientific demonstration. That a certain thing is just is no more scientifically demonstrable than is the beauty of a Gothic cathedral or of a Beethoven symphony to a person who is insensible to it. All of these are questions of the emotional life. Science can ascertain the effects of a legal proposition, but it cannot make these effects appear either desirable or loathesome to man. Justice is a social force, and it is always a question whether it is potent enough to influence the disinterested persons whose function it is to create juristic and statute law.” Fundamental Principles of the Sociology of Law (1913), Moll translation (Cambridge: Harvard Univ. Press, 1936), p. 202. Cf. Lee Loevinger, “Jurimetrics — The Next Step Forward,” 33 Minn. L. Rev. 455 (1949).
Frank, “’Short of Sickness and Death’: A Study of Moral Responsibility in Legal Criticism,” 26 N. Y. U.L. Rev. 545 (1951). Frank feels that Felix Cohen’s neglect of trial courts seriously limited his ethical insights, and he is especially contemptuous of Cohen for his failure to cite Edwin M. Borchard’s book, Convicting the Innocent in his discussion of legal values. This “omission,” in my opinion, is not a serious one, and does not materially affect Cohen’s philosophy of law. I might add that this particular article on Felix Cohen, along with the “armchair” criticism of M. R. Cohen, Dickinson and Adler, and the remarks about Karl Llewellyn’s “failure” to study Tammany Hall “Indians,” represent Jerome Frank in a carping, at times picayunish, critical mood. For the mellower side of Jerome Frank, see Frank, Book Review, 5 J. Legal Ed. 223 (1952), and his last two articles, “Civil Law Influences on the Common Law-Some Reflections on ‘Comparative’ and ‘Contrastive’ Law,” 104 U. Pa. L. Rev. 887 (1956), and “Some Reflections on Judge Learned Hand,” 24 U. Chi. L. Rev. 666 (1957) (published posthumously).
Id. at 447. Fuller does not specifically mention Jerome Frank in these criticisms of American legal realism, but it is my view that he meant them to apply to writers such as Frank. Many other critics of legal realism, and certainly much of Fuller’s discussion, sound remotely like the New Criticism vs. the Formalist Criticism of modern American literary criticism. I would even suggest that at times Frank played the role for American legal philosophy that the late Gertrude Stein played in modern literature.
F. Cohen, “The Problems of a Functional Jurisprudence,” 1 Mod. L. Rev. 5, 7 (1937). On this point, I think that Roscoe Pound would be in full agreement with Cohen, namely, that many of the legal realists have ignored the most important element in the judging process, viz., values. In respect to the problem of language and the law, Cohen wrote: “The object of a realistic legal criticism will be not the divine vision which follows the words ‘Be it enacted’: but the probable reaction between the words of the legislature and the professional prejudices and distorting apparatus of the bench, between the ideas that emerge from this often bloody encounter and the social pressures that play upon enforcing officials. Words are frail packages for legislative hopes. The voyage to the realm of law-observance is long and dangerous. Seldom do meanings arrive at their destination intact. Whether or not we approve of storms and pirates, let us be aware of them when we appraise the cargo.” Ethical Systems and Legal Ideals: An Essay on the Foundations of Legal Criticism 240 (1933).
Cj.: “Intelligent eclecticism deserves no dispraise. But Blackstone’s eclecticism in the field of political and legal philosophy is sadly wanting in intelligent selection and synthesis. He produced a sort of intellectual bouillabaisse. Holdsworth most inadequately seeks to defend this goulash when he says that Blackstone ‘had read and mastered this philosophic learning; but he was not mastered by it.’ But Blackstone had obviously not ’mastered’ this learning. He slung it together in so inexcusably a careless manner as to show no real comprehension of it. His discussion of earlier political philosophizing recalls the story of a student who composed a paper on ’Chinese Philosophy’ by reading and combining an encyclopedia article on ’China’ with one on ’Philosophy.’ Blackstone’s was a shoddy scissors-and-paste job.” Frank, “A Sketch of an Influence,” in Interpretations of Modern Legal Philosophies: Essays in Honor of Roscoe Pound 228 (Sayre ed., 1947).
Davis, “Keep the Home Fires Burning,” 18 Sat. Rev. of Lit., June 18, 1938, pp. 5, 6. Most of what Davis said about this book would probably apply to Frank’s other books as well. The author has since learned from authoritative sources that the book was actually written during one hectic year in Washington during those busy days of the New Deal. With the exception of Law and the Modern Mind, all of his books were written under the stress and strain of administrative, teaching, or judicial responsibilities. Not Guilty, his last book, was completed by Judge Frank and his daughter Barbara the day before his fatal illness. Cf., Professor Alburey Cas-tell in a review of F. C. S. Northrop’s The Meeting of East and West: An Enquiry Concerning World Understanding wrote: “The book contains both a story and an argument. It should be read first for the story…. But once the book is.read for the story, reflection recurs to the argument….” 9 J. of Hist. of Ideas 237 (1948).
Morgan, Book Review, 2 J. Legal Educ. 385, 386 (1950). Morgan thinks that a good example of Frank’s “nonsense” is his definition of a legal right as “In short, a legal right is usually a bet, a wager, on the chancy outcome of a future possible lawsuit.” [Courts on Trial 27.] In discussing the psychological postulates of Frank, especially the notion of the Father-as-Law, Thurman Arnold wrote: “….Is this train of thought scientific? Perhaps not, but there is that magic in it which may lead to the casting off of dead concepts. A chisel is a better tool for breaking fetters than a keen-edged razor.” Arnold, “Law and Men,” Book Review of Law and the Modern Mind, 7 Sat. Rev. of Lit. 644 (1931).
Barrett, “Confession and Avoidance — Reflections on Rereading Judge Frank’s Law and the Modern Mind,” 24 Notre Dame Law. 447, 459 (1949). Barrett thinks that the book needs a complete revision, not a reprinting, and like Roberts, he feels that Frank hasn’t had a new idea since 1930. Apropos “isms,” New Deal historians have sometimes been far from fair in their treatment of Frank. Compare Chesley Manly, The Twenty-Year Revolution (Chicago: Henry Regnery Co., 1954), p. 36 with John Chamberlain, The American Stakes (N.Y.: Carrick & Evans, Inc., 1940), p. 115 or the portrait in 35 Time, March 11, 1940, pp. 71–77; see The New Dealers by the Unofficial Observer (N.Y.: Literary Guild, 1934), pp. 96–99, for a treatment that is friendly if not anti-Semitic.
Loevinger, Book Review of Courts on Trial, “The Semantics of Justice,” 8 Etc.: A Rev. of Gen. Semantics 34, 42 (1950). Mr. Loevinger is a practicing lawyer in Minneapolis. See his provocative article, “Dogmatism and Skepticism in Law,” 38 Minn. L. Rev. 191 (1954).
See chap. II, “The Give-It-Up Philosophies,” in Pound’s Contemporary Juristic Theory (Claremont: Claremont Colleges, 1940), pp. 29–56.
Arnold, “The Jurisprudence of Edward S. Robinson,” 46 Yale L.J. 1282, 1288 (1937). This article was an answer to Mechem, “The Jurisprudence of Despair,” 21 Iowa L. Rev. 669 (1936), which dealt mainly with the work of Arnold and Robinson of the Yale Law School, but indirectly included much of Jerome Frank’s philosophy of law. Note Arnold’s use of the term “objective analysis.” This did not get by the critical eye of Morris Cohen, who attacked both Arnold and Robinson in a scathing book review of Robinson’s Law and the Lawyers, 22 Cornell L.Q. 171 (1936). Thus far, so far as I can determine, Professor Mechem’s jurisprudential world is still pretty much intact. In a recent article, Arnold termed Frank’s jurisprudence the “jurisprudence of therapy.” Arnold, “Judge Jerome Frank,” 24 U. Chi. L. Rev. 633, 635 (1957).
Nevertheless, Frank still believed (though less fervently) in the psychological ideas that he presented in Law and the Modern Mind, e.g., father-authority, father-substitution, Law-as-Father, the Father-as-Judge, etc. It seems to me that the whole notion of father-authority as used by Frank has some serious weaknesses. In the twentieth century, when the authoritarian personality has been under such vigorous attack, in the home, the school, the church, and in politics, how can such an anachronistic theory hold water? The nineteenth century father, or clergyman, or even teacher did have an authoritarian position and a role that would have fitted the Law-as-Father analysis. But in an era of unprecedented social and political reform, together with the emancipation of the female, how can Frank still propound a thesis that seems so far afield from the historical facts? (The extreme adulation and worship of President Eisenhower as a type of Father-substitute might bear out Frank’s thesis, and in particular, show the importance of charisma even in a democracy). Perhaps Frank’s later interest in natural law and Thomistic philosophy was an attempt to recapture the security and father-authority that scholasticism gave to the medieval world. If this is the case, then there are some very serious contradictions in Frank’s philosophy of law. Then again, the confusion may be all mine. See chap. XXVI, “Natural Law,” in Courts on Trial, 346–74; Friedrich Kessler, “In Memoriam — Jerome N. Frank (1889–1947)” in 2 Natural Law Forum 1 (1957); and the extremely interesting Master’s thesis by Father John T. Schuett, S.J., which was published under the title, “A Study of the Legal Philosophy of Jerome N. Frank,” in 35 U. Det. L.J. 28–69 (1957). Father Schuett, in analyzing the metaphysics and epistemology of Frank’s work (especially Fate and Freedom), says that Frank’s reliance on chance and contingency denies the possibility of a true natural law theory.
Ralph Gabriel, Book Review of Fate and Freedom, 59 Harv. L. Rev. 633, 634 (1946). Of course, Professor Gabriel might have meant that Frank was both an ardent Freudian and a pragmatist in 1946.
Frank, “Modern and Ancient Legal Pragmatism — John Dewey & Co. vs. Aristotle,” 25 Notre Dame Law 207, 460 (1950). In fact, Frank says that Aristotle was more pragmatic than even John Dewey was, especially in his Rhetoric. Frank appreciates Aristotle’s emphasis on individualization of the law and his concept of the reality of chance. One might add that Frank’s “discovery” of the late Charles S. Peirce was also late in coming, 1942 to be exact. Cf. Francis D. Wormuth, “Aristotle on Law,” in Milton R. Konvitz and Arthur E. Murphy (eds.), Essays in Political Theory: Presented to George H. Sabine (Ithaca: Cornell Univ. Press, 1948), pp. 45–61.
“…Somewhere along the line Judge Frank discovered Aristotle. The effect has been very beneficial.” Edwin N. Garlan, Book Review of Courts on Trial, 47 J. Philos. 704, 708 (1950). On the subject of Aristotle, Frank had this to say: “…Since he saw unconquerable unruliness, spontaneous chance and change, as part of reality, his notion of ‘natural law’ was not likely to be that of an ’absolute standard,’ permanent and unchanging. Anti-Platonist, anti-totalitarian, he was an exponent of a point of view which, once more, we today are formulating: That all the legal rules men encounter in actual experience are man-made, but that the ideal of justice is ever at work, demanding that, to meet new circumstances, those rules be constantly adjusted so that, in particular cases, they will respond to the community’s sense of fairness. The word ’justice’, too, someone may reply, is vague and has many meanings. But it carries no false connotation of being a gift to mankind, something that men can attain effortlessly.” Frank, Book Review of George M. Calhoun’s Introduction to Legal Science, 57 Harv. L. Rev. 1120, 1129 (1944).
Cf. Milton Konvitz: “He takes pains to avoid the charge of nihilism or antinomianism. He is more prone to cite Aristotle than Freud. A time there was when Jerome Frank was the Robinson Jeffers of jurisprudence. It is hardly in order, however, to expect a judge of the United States circuit court of appeals to live on locusts and wild honey, to carry fire in his bosom and walk upon hot coals.” Konvitz, Book Review of If Men Were Angels, 56 Harv. L. Rev. 1020, 1022 (1943).
If this were the case in respect to Frank, how could his life-long fight against the use of “third degree” methods by police officials be explained? Or his trenchant criticism of capital punishment, and his zealous regard for civil rights generally. See Jerome and Barbara Frank, Not Guilty (1957); Frank, “Today’s Problems in the Administration of Justice,” 15 Fed. R. D. 93 (1954); also see Frank’s opinion in United States ex rel. Caminito v. Murphy, 222 F. 2d 698 (2d Cir. 1955) and app. VI in If Men Were Angels 317–24 (1942). On the admissibility of evidence, see his concurring opinion in United States v. Costello, 221 F. 2d 668, 679–80 (2d Cir. 1955), and his vigorous dissent in United States v. Ford, 237 F. 2d 57, 70–75 (2d Cir. 1956); on the problem of self-incrimination, see his opinion in United States v. Gordon, 236 F. 2d 916 (2d Cir. 1956), especially his statement that “…An overzealous prosecutor’s heaven may be everyone else’s hell.” (at p. 920); and his eloquent concurring opinion in United States v. Roth,237 F. 2d 796, 801–27 (2d Cir. 1956), especially the appendix, pp. 806–27, where he traces the history of American obscenity legislation. This decision was affirmed by the Supreme Court in Roth v. United States, 354 U.S. 476 (1957). In regard to the use of reason, there is still some doubt in the minds of many of his critics, e.g.,Arthur N. Holcombe: “We like to believe that men’s conscious and deliberate purposes have to some extent affected the past, and can also to some extent affect the shape of the future. But is there such a sharp conflict between Americans’ natural faith in themselves and interpretations of history which recognize the validity of at least the possibility of scientific laws in the realm of human behavior?… He seems not to try to go beyond the will to believe in his articles of faith and to search the ultimate foundations of faith itself. Lacking further interest in philosophy, he might have fortified his faith with poetry.” Holcombe, Book Review of Fate and Freedom, 40 Am. Pol. Sci. Rev. 356, 357 (1946). “When he tells us that history is not a science, he rides this essentially sound theme so hard that he almost undermines our conviction that we can make any useful interpretations of history. He has had to make many such interpretations himself, and he often makes them with undue ease.” Richard Hofstadter, Book Review of Fate and Freedom, New York Times Book Review, July 8, 1945, p. 5.
Frank, If Men Were Angels 305. Frank regards his deep respect for Justice Holmes as positive proof of his regard for syllogistic reasoning. Adler and F. S. Cohen strongly dissent.
Frank, Preface to the sixth printing of Law and the Modern Mind xvii (1949). “To me, it seems that man’s legal philosophy — so far as it is his own and not merely borrowed verbiage — usually is somewhat in step with his general world-outlook and that outlook, in turn, usually more or less reflects his personality. His legal philosophy, then, to the extent that it is original and articulate, derives from the clash of his personality with the governmental problems of his times and with the ideas of other legal philosophers with which he is acquainted. To neglect either the individual or the social content of any vital legal philosophizing is to depersonalize it — and thus to deform it. Comprehension of another calls for empathy….” Frank, Book Review of Huntington Cairns, Legal Philosophy From Plato to Hegel, 25 Ind. L.J. 231, 235 (1950).
Frank, “Lawlessness,” in 9 Encyc. Soc. Sci. 277, 278 (1935). Social control, of which law is only one part, would then consist of bringing the legal norms into closer proximity with the ethical and psychological norms of human existence. Although Frank has been mainly concerned with specific court decisions rather than law as a constructive social force, he has always believed in the need for reducing civil strife through various means of social control and mediation. E.g.,his essay, “Realistic Reflections on Law as a Constructive Social Force,” in Proceedings of the National Conference of Social Work 326–32 (Detroit, 1933).
The following reviewers evidence the same belief: “Few judges are articulate, for all the opinions they write. Judge Frank is not only articulate but concerned, and he dignifies himself in showing how the profession can dignify itself by improving its means of inquiry. This should never be called reform: it is a worthy exercise in discovery and maturity, and a contribution to honest legal thinking.” Judge Curtis Bok of Philadelphia in a Book Review of Courts on Trial. 268 Annals, Mar. 1950, p. 219. Marshall H. Fitzpatrick wrote: “…Laymen and members of the profession alike will learn much from this book. The layman will certainly have a better idea of what trial courts do and what they should do. Many lawyers will be aided in dispelling the unsuspected `mote’ of legal wizardry from their eyes. Activists seeking improvement in our legal system will do well to ponder the tentatively suggested reforms which evolve from the matters discussed in this book.” Fitzpatrick, Book Review of Courts on Trial, 2 Ala. L. Rev. 181, 184 (1949). Or Alfred L. Scanlan in a Book Review of Courts on Trial: “We can say that this book strips away the robe of awe and mystery which some of our chicken-hearted legalists like to surround the law, that supposedly dehumanized concept to which we all pay homage….” Scanlan, 25 Notre Dame Law. 396, 399 (1950).
“No one with a taste for philosophy can fail to find interest and stimulation in Judge Frank’s review of the history of political ideals. Of course, he attacks everyone who does not fit into his synthesis but this is the beauty of a crusader who believes in his cause….” Thurman W. Arnold, Book Review of Fate and Freedom, “Free-Wheeling Among Ideas and Ideals,” 28 Sat. Rev. of Lit., June 23, 1945, p. 10. Arnold always did like a good fighter. Cf. the remarks of E. Blythe Stason: “Also, it is unfortunate that the author has attacked Dean Pound so vigorously. Doubtless there is a fundamental disagreement between the two, but there is still room in America for honest and healthy difference of opinion. Each man has made and is making an important contribution to American jurisprudence. I believe it would be more dignified to minimize personalities.” Stason, Book Review of If Men Were Angels. 41 Mich. L. Rev. 269, 275 (1942).
Symposium on Law and the Modern Mind, 31 Col. L. Rev. 82, 88 (1931).
Seagle, The History of Law (N.Y.: Tudor Publishing Company, 1946), pp. 17–18• Originally published under the title, The Quest For Law.
Bodenheimer, Jurisprudence (N.Y.: McGraw-Hill, 1940), p. 314. Casting a “plague on both your houses” still leaves Bodenheimer with the problem of finding a better definition of law. For a more sympathetic view of Frank, see Bodenheimer, “A Decade of Jurisprudence in the United States of America: 1946–1956,” 3 Natural L. Forum 44, 51–53 (1958), as well as his “Law as Order and Justice,” 6 J. Pub. L. 194, 199 & n. 26, 201, 209 (1957), and “Analytical Positivism, Legal Realism, and the Future of Legal Method,” 44 Va. L. Rev. 365, 371–72, 374–76 (1958).
Id. at 316. The realists would be extremely hurt by the above statement, for they conceive of themselves as thorough-going democrats and not totalitarians. But “executive justice” sounds like and is very much akin to the “totalitarian liberalism” of a decade ago. For Jerome Frank, this entire discussion would be labelled “verbomania.” See Frank’s preface to the sixth printing of Law and the Modern Mind xxiii (1949); If Men Were Angels 3–9, 190–211; Courts on Trial 405–06; and his “Modern and Ancient Legal Pragmatism — John Dewey & Co. vs. Aristotle,” 25 Notre Dame Law. 460, 490–92 (1950); Alexander H. Pekelis, Law and Social Action (1950), pp. 87–90. Cf., Herbert W. Schneider, Three Dimensions of Public Morality (Bloomington: Indiana Univ. Press, 1956), pp. 88–89 for a discussion of the “majesty of the law” and its effects.
Kantorowicz, “Some Rationalism About Realism,” 45 Yale L.J. 1240, 1248–50 (1934). This article is still considered to be one of the best short critiques of American legal realism. One of the most penetrating assessments of Frank’s legal philosophy can be found in Edward McWhinney, “Judge Jerome Frank and Legal Realism: An Appraisal,” 3 N.Y.L. Forum 113 (1957). Also, see Jerome N. Frank, x889–1957,which contains the memorials delivered at the joint special meeting of the New York County Lawyers’ Association and The Association of the Bar of the City of New York, May 23, 1957.
It is interesting to note that Frank accuses the economists of an indifference to values: “Scientific method, in the most exact sciences, entails awareness, so far as may be, of the ‘personal equation’ so that due allowance can be made for it. Most economists have not borrowed that wisdom from the natural scientists. By pretending to themselves and to others that their alleged science rests on a complete indifference to ethical values and ideals, many economists have concealed the ever-present activity, in their thinking and observations, of their own social ideals. Their suppressed ethical attitudes and assumptions thereby become the more pronounced in their effects. Asserting that they were dispassionate, the economists became particularly passionate….” Frank, “The Scientific Spirit and Economic Dogmatism,” in Science For Democracy: Papers From the Conferences on the Scientific Spirit and Democratic Faith 19 (Nathanson ed. 1946). While the economists bear the brunt of Frank’s attack, his thesis would probably apply to all of the social sciences, including law.
Stone, The Province and Function of Law: Law as Logic,Justice and Social Control 382–83 (1946). Cf., Jerome Hall, Studies in Jurisprudence and Criminal Theory 29–31, 119–21, 136–38 (1958).
Cf., “…The human animal has always desired something beyond himself He has expressed that desire in symbols — `magic’ — to complement his rational equations. Justice, even through human courts and more human juries, is still one aspect of a search for an eternal value, which outruns attainable reason.” Adolf A. Berle, Jr., Book Review of Courts on Trial, 86 Survey 90 (1950).
Stone, op. cit. supra p. 144, at 383. See Ehrlich, Fundamental Principles of the Sociology of Law 202 (Moll transi. 1936).
E.g., Francis R. Aumann: “In emphasizing the factor of control the realists do not deny that `purpose has always been an inescapable factor in determining what shall be enforced as law’ but stress the point that the adaptation of means to an end ought to be self-conscious and methodical, a recognized part of the jurists’ problem.” Aumann, “Some Changing Patterns in the Legal Order,” 24 Ky. L.J. 38, 41 (1935). (Inserted quotation from George H. Sabine, “The Pragmatic Approach to Politics,” 24 Am. Pol. Sci. Rev. 865, 875 (1930).
Llewellyn, “Legal Tradition and Social Science Method — A Realist’s Critique,” in Brookings Institution, Committee on Training, Essays on Research in the Social Sciences (Washington: The Brookings Institution, 1931), p. 101. This is an almost unbelievable oversimplification, and astonishing from a legal realist who is considered “moderate.” If the problem were as simple as Llewellyn paints it, social scientists wouldn’t argue about either their methods or their results. “Prudence,” even of the Llewellynian variety, is a very rare commodity, certainly among many legal philosophers of realistic persuasion. Cf. the interesting and novel definition of the scientific method made by the famous physicist, Percy W. Bridgman: “… I am not one of those who hold that there is a scientific method as such. The scientific method, as far as it is a method, is nothing more than doing one’s damnedest with one’s mind, no holds barred. What primarily distinguishes science from other intellectual enterprises in which the right answer has to be obtained is not the method but the subject matter….” Bridgman, “the Prospect For Intelligence,” 34 Yale Rev. 444, 450 (1945). (Emphasis added).
Morris Cohen and Ernest Nagel, An Introduction to Logic and Scientific Method (N.Y.: Harcourt, Brace, 1934), p. 157.
Morris Cohen, Book Review of Robinson’s Law and the Lawyers, 22 Cornell L.Q. 171, 176 (1936). Cf. Frank, “Mr. Justice Holmes and Non-Euclidean Legal Thinking,” 17 Cornell L.Q. 568 (1932), where Frank decries the confusion over the Is and the Ought.
On the question of functional jurisprudence and the problem of legal certainty, see the following: Flavio López de (Dilate, La certezza del diritto (Rome, 1950); Norberto Bobbio, “La certezza del diritto è un mito?” a critical review of Frank’s Law and the Modern Mind in Rivista internazionale di filosofia del diritto (Italy, 1951); Mario Lins, Search For the Functional Invariants of Law (Rio de Janeiro, 1955). Also, Francis R. Aumann, The Instrumentalities of Justice: Their Forms, Functions,and Limitations (Columbus: The Ohio State University Press, 1956).
“It is easy for those who have not reflected on actual scientific procedure to say: Begin with the facts. But an even more fundamental difficulty faces us. What are the facts? To determine them is the very object of the scientist’s investigations, and if that were but the beginning or first stage of science, the other stages might be dispensed with. To determine the facts scientifically, however, is a long and baffling enterprise, not only because the facts are so often inaccessible, but because what we ordinarily take for fact is so often full of illusion. Our expectations and prepossessions make us see things which do not in fact happen, and without the proper previous reflection we fail to notice many obvious things which do happen. The problem of how to get rid of illusion and see what truly goes on in nature requires that persistent and arduous use of reason which we call scientific method.” Morris R. Cohen, Reason and Nature: An Essay on the Meaning of Scientific Method 77–78 (1931). See Frank, If Men Were Angels 294; chap. 14, “Hard Facts,” in Fate and Freedom 174–78; Courts on Trial 211–12, 316–17, 320, 324; “Modern and Ancient Legal Pragmatism - John Dewey & Co. vs. Aristotle,” 25 Notre Dame Law. 207, 233–34 (1950); “ `Short of Sickness and Death’: A Study of Moral Responsibility in Legal Criticism,” 26 N.Y.U.L. Rev. 545, 579–81, 586–87, 592–95 (1951).
M. R. Cohen, “On Absolutisms in Legal Thought,” 84 U. Pa. L. Rev. 681, 691–92 (1936).
Harold G. Reuschlein, Jurisprudence - Its American Prophets: A Survey of Taught Jurisprudence y (1951).
Paton, A Text-Book of Jurisprudence 31–32 (1st ed. 1946).
Law and the Modern Mind viii (1949 ed.). Although this does not represent a definition of justice, it is at least a recognition that justice exists or ought to exist. For an excellent example of how the unattainability of complete legal certainty affects the moral dilemmas that face judges, see Judge Frank’s dissenting opinion in Repouille v. U.S., 165 F. 2d 152, 154–155 (2d Cir. 1947).
Edmond Cahn, “Jerome Frank’s Fact-Skepticism And Our Future,” 66 Yale L.J. 824, 832 (1957). Dean Eugene V. Rostow of the Yale Law School said: “…He was an optimist and an enthusiast. Knowing sin, he believed in virtue. He found the good in all men, and cheered it with conviction. No one of us will ever forget the sincerity of his faith that we all possessed at least a peppercorn of man’s transitory potential for the divine.” Rostow, “Jerome N. Frank,” 66 Yale L.J. 819 (1957).
“… His seeming iconoclasm was rooted in his zealous loyalty to the realization that the history of thought, particularly sociological thought, is the history of continuous displacement of erroneous dogma.” Felix Frankfurter, “Jerome N. Frank,” 24 U. Chi. L. Rev. 625 (1957).
Cahn, supra p. 149, at 824. For a recent and more definitive treatment of Frank’s work, see Cahn, “Fact-Skepticism and Fundamental Law,” 33 N.Y.U.L. Rev. 1 (1958); also, the superb memorial issue, 25 U. Chi. L. Rev. 625–708 (1957); and Edward McWhinney, Book Review, Not Guilty, 33 Ind. L. J. 111 (1957).
“…I never heard him speak of ‘eternal principles’ or of ’values which are everlasting,’ but he did recognize that there are objectives which are enduring, and that they must, as change and rust get in their work, be newly adapted to the infinite variety of the changing circumstances of life. If law must not break with the past, it must not neglect its duty to the present. In a deft process of accommodation there must alike be continuity and novelty. For these and like reasons Jerome Frank is to be numbered among the common-law judges and is to be ranked high among modern jurists. For these reasons he stands in the great tradition.” Walton H. Hamilton, “The Great Tradition — Jerome Frank,” 66 Yale L.J. 821, 823 (1957).
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Paul, J. (1959). Frank’s Contributions to the Philosophy of American Legal Realism. In: The Legal Realism of Jerome N. Frank. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9493-8_7
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