The Legal Realism of Jerome N Frank A Study of Fact Skepticism and The Judicial Process

This study is a systematic and critical
assessment of the ideas of a modern

American legal thinker, the late Judge
Jerome Frank, who was a leading expo-
nent of the so-called school of American
"legal realism". Few other figures on
the contemporary American legal scene
could claim as fruitful, colorful and
active a career as that ofJerome Frank.
In a period of forty-five years (1912-
1957), he was a practicing lawyer, a law
school teacher, a prolific writer, govern-
ment counsel, administrator, and a
federal judge. His untimely death in
1957 ended a rich contribution to the
philosophy of American law and a
quarter of a century of public service
to the nation.
As he was a man of broad ideas, the
systematic organization of his ideas
constituted a real challenge to the
author. Therefore, the main purpose
of this study is to present a systematic
statement of Frank's philosophy of law
and its role in modern society. A mere
arrangement of a man's idea is useful
but not sufficient, so that the second
purpose of this study is to make a criti-
cal evaluation of his ideas and their
place in recent American legal thinking.
The author keeps Jerome Frank in the
angle of vision of modern society and
modem thought, because these are the
things that have influenced his thinking,
THE LEGAL REALISM OF JEROME N. FRANK
JULIUS PAUL
THE LEGAL REALISM OF

JEROME N. FRANK
A STUDY OF FACT-SKEPTICISM AND THE
JUDICIAL PROCESS
WITH A FOREWORD BY
LEON GREEN
University of California
•
MARTINUS NIJHOFF / THE HAGUE / 1959
ISBN 978-94-011-8684-1 ISBN 978-94-011-9493-8 (eBook)
DOl 10.1007/978-94-011-9493-8
Copyright I959 by Martinus Nijhoff, The Hague, Netherlands

Softcover reprint of the hardcover 1st edition 1959
All rights reserved, including the right to translate or to
reproduce this book or parts thereof in any form
FOR SHaLOM SHACHNE AND EDITH .....
Possessors at virtue and rare courage
in the midst at Hostility
Foreword
Between the Levite at the gate and the judicial systems of our
day is a long journey in courthouse government, but its basic
structure remains the same - law, judge and process. Of the
three, process is the most unstable - procedure and facts. Of the
two, facts are the most intractable. While most of the law in books
may seem to center about abstract theories, doctrines, princi-
ples, and rules, the truth is that most of it is designed in some
way to escape the painful examination of the facts which bring
parties in a particular case to court. Frequently the emphasis is
on the rule of law as it is with respect to the negotiable instru-
ment which forbids inquiry behind its face; sometimes the empha-
sis is on men as in the case of the wide discretion given a judge
or administrator; sometimes on the process, as in pleading to a
refined issue, summary judgment, pre-trial conference, or jury
trial designed to impose the dirty work of fact finding on laymen.
The minds of the men of law never cease to labor at im-
proving process in the hope that some less painful, more
trustworthy and if possible automatic method can be found to
lay open or force litigants to disclose what lies inside their
quarrel, so that law can be administered with dispatch and de-
cisiveness in the hope that truth and justice will be served.
No one else has subjected law, jUdging, and the litigation
process to deeper probing for so long a period as has Jerome
Frank, and no one has more clearly exposed the weaknesses of
each. It would be difficult to comprehend the range of his labors.
He was a turbulent thinker, in constant eruption, throwing up
the thought deposits of all ages and illuminating them with great
brilliance. It is no exaggeration to say that the shocks and rum-
blings of his eruptions will continue to be felt in every courthouse
in this and other countries.
VIII FOREWORD
Much of Frank's thinking was directed at tort litigation, for

there the rules of law give more latitude for judgment, the
process is more extended and the administration is shared more
widely by expert and layman than is found elsewhere. His demon-
stration of the unreliability of fact finding in tort cases, whether
by judge or jury, is beyond peradventure. Yet, he recognized that
though law, judge and process be developed to their highest per-
fection, in the end, as litigants or otherwise, we live under the
judgment of our neighbors, from which there is no escape however
stupid in the particular case it may be.
In facing up to what can be done to make fact finding and
fact evaluation more reliable, he ran up against the most diffi-
cult problem of jurisprudence wherever it is found - a problem
that seemingly grows more and more insoluble under the pres-
sures of a society in which litigation has all the earmarks of ma-
chine production and big business. But Frank did not yield easily
to the impossible and his advocacy of improvement at every
point of the litigation process never lost its bloom.
Of his specific proposals, some were long range, and dependent
upon the educational process; others involved nothing more than
procedural improvements in the conduct of trial. But these
proposals even in their totality do not reflect the full thrust of his
labors. He struck deeper than he perhaps realized. First, he struck
conviction in numberless law students, law teachers, judges and
practitioners that fact finding is basic to the doing of justice and
that the fact finding processes of the courthouse have little re-
liability.
Noone can measure the extent or depth of this influence.
It is enough here to observe that the sensitivity of the
profession as a whole in these respects has risen measurably
within recent years, and some of the proposals advocated by
Frank are being employed, as for example, non-partisan panels
of medical experts in malpractice cases, and special verdicts
in jury trials. Others are being advanced by serious discussion.
Noone could ask for a quicker or more satisfying response to
his labors.
Second, perhaps a more important reaction to his influence
is the quickening of the movement, already underway when
Frank began to write, to reduce the area of investigation of the
FOREWORD IX
facts in litigation by the substitution of practices requiring a

minimum of fact finding. He witnessed, as have we all, the most
extensive reduction of the fact finding areas in tort cases, the
greatest withdrawal of power from juries, and the most intensive
use of scientific fact finding apparatus that have occurred in the
development of the common law. This is especially true in the
area of torts administered under the action of negligence.
The most obvious examples of how the areas of fact finding
have been reduced are the cases under the Federal Employers'
Liability, Safety Appliance and related Acts; and also under
workmens' compensation and comparative negligence statutes.
Under these legislative provisions, emphasis has been definitely
shifted from the doctrinal issues of liability to the connection
of defendant's conduct with the hurt and the extent of the hurt.
Relatively speaking, both proof and its evaluation on the issues
of causal relation and extent of injury can usually be resolved
with more accuracy than can the doctrinal issues designed to de-
termine the "fault" of the parties.
The same attitude can be identified in nearly every area of
common law tort litigation and especially is it becoming more
and more apparent in traffic cases. While great efforts are still
made in traffic cases to present the facts in detail, the task of
discovering with any accuracy what took place in a few brief
seconds of tragedy is impossible, the ultimate findings of a jury
are obscured by their verdict, and the reaction of the judges by
a thick covering of legal doctrine. What Frank calls the "gestalt"
dominates the process and the result. The progressively heavy
shadow of insurance reduces the importance of the "fault" issues
of liability and increases the importance of causal relation and
damages.
Similar reduction of the area of fact finding through substi-
tutes for liability based on negligence is found in the food and
chemical products cases, in the physician's cases, in the land-
owner's liability for dangerous operations, and elsewhere. The
basic issues in all these cases are the fact of injury, its extent, and
their relation to the conduct of the defendant. The so-called
substantive doctrines become less and less signficant except as
they are utilized by appellate courts to control the trial court and
jury. Factual data as to causal relation and extent of injury are
x FOREWORD
more and more frequently developed through scientific proof of

many types, as were advocated by Frank. This does not mean
that all types of error in fact finding are eliminated, but only
that as the areas are reduced and scientific data and opinion are
relied upon, the chances of error are reduced.
It will have been observed that no distinctions have been made
between substantive and procedural law. Frank doubted, as I
doubt, that tort law can be so set off in any meaningful sense.
Whether res ipsa loquitor, negligence per se, presumptions, re-
quirement of expert evidence, implied warranty, burden of proof,
standards of care, assumed risk, contributory negligence, proxi-
mate cause, and all the other aspects of determining duties and
violations of duties, can be classified into substantive and pro-
cedural, could be debated indefinitely without agreement. They
are complex concepts subject to extended analysis, useful in
dealing with tort cases, and if they could be classified as substan-
tive and procedural, they would probably be found to be both.
What is important is not their classification, but the fact that
each may be and is frequently used to narrow the field of factual
data for the purposes of judgment, whether that of judge or jury.
It is believed that courts more and more seek to avoid the
difficulties of comprehensive fact finding because it is frequently
administratively impossible to find the facts, even though court
personnel, time and money were available to make the attempt.
Personnel, time and money are not available, and factual data
are quickly resolved into interminable details, opinion, belief,
speculation, surmise, prejudice, feelings and other imponderables
so extravagant that they cannot be clutched. Moreover, if the
details could be determined with accuracy, they are too difficult
to evaluate in terms of legal doctrine.
Thus, the fact finding process is cut short, and thus a court
will permit a jury to impose, or itself impose, liability upon a
defendant without too close an examination of the facts, once it
is shown that the victim's injury is linked to the conduct of the
defendant. Even so restricted, Jerome Frank did not approve
jury trial as a good method of fact finding. Jury trial permits too
great a slurring of the facts even on restricted issues - too great a
power to dominate the whole case by shaping facts to support the
end desired. But he insisted that so long as we have jury trial, it
FOREWORD XI
should be given a fair chance, its verdict accepted and not

uprooted by insistence on doctrinal refinements shaped by appel-
late courts, designed also to reach an end desired and even more
to be distrusted.
And this leads me to conclude that whenever injuries occur
with constancy and in great numbers, such as in the automobile
cases, under circumstances that make it impossible to discover
the facts with relative accuracy, or when risks are imposed be-
yond the control of those whose operations impose them, and the
victims have no means of providing protection of their own, tort
law must give way to some form of insurance or other means of
loss distribution by which the risks are shared by the group as a
whole.
Whenever fact finding is a vain attempt, as has been demon-
strated by Frank to be too frequently true, some way must be
found to take care of the victim without knowing all the facts.
The operation of the orthodox judicial process may for a period
obscure what is taking place, but sooner or later, the process will
be modified to reflect the necessity. The influence of Jerome
Frank in this direction will bear fruit abundantly and for a long
time.
LEON GREEN
Formerly Dean of the Law Schools of the University of
North Carolina and Northwestern University;
Currently Distinguished Professor of Law, Hastings College of
Law, University of California, San Francisco, California
Acknowledgements
With the deepest sense of appreciation, I want to acknowledge the

guidance and inspiration of my former teacher, Professor Francis
R. Aumann of the Department of Political Science of The Ohio
State University, without whose help this book would not have
been possible. His was the steady hand and mind that kept me on
the road to completion.
Although they did not have any direct connection with the
writing of this book, I cannot ignore the intellectual inspiration
and kindness that Professors Kurt H. Wolff and John W.
Bennett of the Department of Sociology and Anthropology, and
Professors Emeritus H. Gordon Hayes and Arthur Salz of the
Department of Economics, afforded me. In my first years in the
Graduate School of The Ohio State University, they were the
teachers who kindled my interest in the scientific method and in
social and intellectual history, which have been invaluable to me
in the writing of this book.
I am also indebted to the Graduate School of The Ohio State
University for awarding me a University Fellowship in 1954, and
to the Graduate School of Southern Illinois University for
research grants in 1956-1958, which were instrumental in the
completion of this work. The School of Law Library of Washing-
ton University (St; Louis) was indispensable to my labors, and to
them, and particularly Miss Jean Ashman, the law librarian, I
am deeply grateful.
I want to thank the editors of the following journals for per-
mission to reprint in whole or in part the following articles of
mine: "Jerome Frank's Ideas on the Relation of Legal Education
to the Judicial Process," Journal of Legal Education (Vol. 9, No.
2, December 1956, pp. 177-185) ; "Jerome Frank's Views on
Trial by Jury," Missouri Law Review (Vol. 22, No.1, January
XIV ACKNOWLEDGEMENTS
1957, pp. 28-37); "The Role of the Judge in Jerome Frank's

Philosophy of Law," Oklahoma Law Review (Vol. 10, No.2, May
1957, pp. 143-166), originally copyrighted in 1957 by the Univer-
sity of Oklahoma Press; "Jerome Frank's Attack on the 'Myth'
of Legal Certainty," Nebraska Law Review (Vol. 36, No.4, June
1957, pp. 547-563); "Foundations of American Legal Realism,"
West Virginia Law Review (Vol. 60, No.1, December 1957, pp.
37-54); "Jerome Frank's Contributions to the Philosophy of
American Legal Realism," Vanderbilt Law Review (Vol. 11, No.
3, June 1958, pp. 753-782), originally copyrighted in 1958 by the
Vanderbilt University Press.
The foreword by Professor Leon Green originally appeared
as a paper entitled "Fact Skepticism and Tort Law," which he
gave at the 1957 Jurisprudence Roundtable on Jerome Frank's
"Fact Skepticism" at the annual meeting of the Association of
American Law Schools, San Francisco, California, December 29,
1957. I wish to thank him for his gracious permission to use his
paper.
And last, but not without pre-eminence, I want to thank my
wife, Laura Rankin Paul, who was a wonderful helpmate through-
out the writing of this book.
JULIUS PAUL
Carbondale, Illinois,
September 15, 1958.
Glossary of Words and Phrases Used
in this Book
Throughout this study, I have used numerous words and phrases

that might seem novel to those who are unfamiliar with Jerome
Frank's writings and the writings of other legal realists. Many of
the terms used by Frank are of his own invention, while others
bear the mark of his tampering or interpretation. I have omitted
those terms that were defined in the body of the book.
"action approach" - Refers to those legal realists who stress

legal action (i.e., decisions) as against legal ideals or values in their
methodology.
"analytical jurisprudence" - Refers to the school of legal thought
that followed the teachings of John Austin. It is more accurately
referred to as the "imperative" or "command" theory of jurisprudence.
"basic legal myth" - The myth that legal rules can provide
certainty and exactness in the law.
"behavioristic jurisprudence" - Referes to those extremists who,
like Malan and Schroeder, believed that law was exclusively a function
of psychological predispositions of the individual judge.
"black-letter law" - Law in books and books only. Another phase
of what Frank would regard as traditional legal rule certainty.
"Cadi" or "Kadi" or "Cadi-justice" - A term borrowed from
Islamic practice referring to a specially chosen and presumably ob-
jective judge of the law and the facts. Frank applied this term to
the jury, which he believed was both the fact-finder and witness-
audience.
"case book method" - Refers to the technique used in American
law schools for teaching law through the use of books containing
selected cases on a particular branch of law, e.g., contracts, torts,
or property. This method was first used on an organized basis at the
Harvard Law School under the sponsorship of the late Dean Chris-
topher Columbus Langdell.
"certainty seeking" - The search for absolute certainty in the law
through the use of legal rules or other guides, a view which Frank
found dangerous and reprehensible.
XVI GLOSSARY OF WORDS AND PHRASES
"conceptualist" - A term used by the legal realists to describe

those who believe in legal rules.
"correct" or "just decision" - According to Frank, a decision
that results from the application of the right rule (R) to the most
objective facts of the case (OF) in order to give the decision (D).
"court-house government" - A term that Frank used frequently,
referring to the whole judicial process but particularly to the action
of trial courts, which he considered the heart of the legal system,
and which includes not only trial court decisions, but the work of
juries, the attitudes of trial lawyers, appellate or upper-court judges
and their decisions, administrative agencies, and everything connected
with cases that are tried in courts of initial jurisdiction.
"executive justice" - Law that is made, expanded, interpreted,
or altered by the action of administrative tribunals or by government
officials outside of the traditional courts and the results therein that
are sometimes characterized by this term of opprobrium.
"fact-skeptics" - These are the legal realists who peer not only
behind the paper rules but also behind the lacts of a case, e.g., Frank
and Arnold; sometimes termed "three dimensional legal thinking"
by Frank.
"father authority" or "father-substitute" - Frank's notion that
the father is a judge whose authority passes over to the Law after
childhood ends, i.e., the Father-as-Judge becomes the Law-as-Father.
This is part of Frank's description of the basic1egalmythofrulecertainty.
"fight theory" - The attempts of lawyers to win cases by swaying
the judge and the jury, not by trying to find the "objective" facts
of a case, the "truth" as it were.
"functional jurisprudence" - A term used to broadly denote the
school of legal thinkers who followed Holmes and the pragmatic
philosophers (especially James and Dewey) and which includes the
sociological jurisprudence of Pound as well as the various branches
of American legal realism.
"free phantasy technique" - Refers to Lasswell's method,
borrowed from Freudian psychoanalysis, of allowing a person to
speak freely of his past memories in order to throw light on his
present behavior.
"gestalt," "composite," or "contrapuntal" - These are all terms
that Frank used to describe the complex psychological and environ-
mental factors that operate in the mind and personality of an individu-
al judge when he makes a decision.
"government of laws" - For Frank, this term is the counterpart
of the worship of rules in the political realm and can therefore be
classified as a myth.
"government of men" - Frank's definition of what actually
exists, as against the belief that a government is law and not a group
of men who make and interpret the law.
GLOSSARY OF WORDS AND PHRASES XVII
"inherent inexactitude" - Frank's view of the law as it actually
operates, which prevents certainty. Consequently, without certainty
and predictability, no science of the law is possible, according to
his view.
"j udicial fact -finding" - The process of "discovering" or finding the
facts of a particular case by the judge, the jury, lawyers, and the
other participants in a triaL
"judicial hunch" or "legal hunch" - The idea, as expressed in the
writings of Frank, Hutcheson and others, that the decision of a judge
is in reality the result of a "hunch" or guess.
"judicial self-awareness," "judicial restraint," "judicial self-limi-
tation," or simply "conscious jurist" - The qualities that Frank
believes every judge should possess if he is to understand himself,
human nature, and the judicial process. Synonomous with the
"mature" or "adult" jurist, as exemplified by Justice Holmes and
Learned Hand.
"judge-made law" - Law made by the judges in their opinions in
the sense of interpretation, expansion, or clarification of statutes,
administrative decrees, and the like.
"jury-made law" - According to Frank, law that is "made" by a
jury as a result of its finding of the facts in a specific case.
"jural order," "legal order," "legal system," or "judicial system"
- These are all terms that refer to the administration of justice in
the United States and to the over-all Anglo-American tradition of
trial by jury, due process of law, the right to appeal, etc.
"jurisprudence" - I will not hazard a definition of this term,
but when it appears, it refers to any writing on legal ideals, institutions,
or history that bears a philosophical imprint. For the most part,
this term is used synonomously with "legal philosophy" or "legal
thinking" in this study.
"law-teacher schools" - According to Frank, these are the law
schools that have men on their faculty who have had no practical
legal experience and whose major interest is in the training of law
teachers and not lawyers. In contrast to "lawyer-schools," or schools
with men of wide and varied legal experience who have the necessary
background for the training of practicing lawyers.
"legal actualism," "legal observationism," "experimental juris-
l'rudence," "pragmatic jurisprudence," "possibilism," "legal mode-
sty" - These are all synonyms for Frank's description of the legal
realist approach to the study of legal behavior.
"legal axioms," "wish assumptions," "is assumptions" - This is
Frank's distinction between those statements about law that are
purely descriptive of what is and those that prescribe what ought
to be, or between the "ought" and the "is." "Legal axioms" refers to
the so-called "self-evident truths" about the law.
"legal codification" - The attempt to systematically organize
XVIII GLOSSARY OF WORDS AND PHRASES
legal rules, principles, precedents, etc. into codes that judges can use
when making decisions, which for Frank is simply another example
of the belief in the myth of legal certainty and an almost fetishistic
belief in legal rules.
"legal functionary" - A term applied to judges who serve as the
value-creators and value-interpreters for the community. Socio-
logically-oriented writers on law, e.g., Pound, Rheinstein, and Ehr-
lich, use this term or similar terms in the sense of a judge whose job
it is to find the best possible means for adjusting law to the social
interests and aspirations of the community he serves.
"legal fundamentalism," "legal absolutism," "traditionalism,"
"Bealism" - Frank's term of reference for the theory that the law
consists only of paper rules.
"legal logic-chopping" - Frank's derogatory reference to the use
of syllogistic reasoning in jurisprudence, especially by people such as
Beale and Adler.
"legal magic" - The traditional conception of a mechanical ap-
plication of R X F gives D, which fails to approximate the realities
of the judicial process. The notion that this formula will produce
legal certainty is, according to Frank, the equivalent of a primitive
reliance on supernatural magic.
"legal realism" or "realistic jurisprudence" - This referes not only
to a school of modem American legal thinking, but to a general point
of view towards the study of law, principally skeptical of a blind
reliance on legal rules, pragmatic and experimental in its outlook,
and with its main emphasis focused on the study of law in action.
"legal rule certainty" or "rule certainty - The slavish reliance on
rules and the belief that legal rules can provide a complete basis for
predicting future legal action.
"library-law" - Frank's reference to Dean Langdell's emphasis
on the written materials of legal study (especially the legal rules), as
against the study of the law in action.
"nominalist" - A term of opprobrium used by the non- and
anti-realists to describe Frank and others who presumably do not
believe in the existence or efficacy of legal rules.
"non-absolute" - A term used by Barrett to describe the position
of Frank, and one that Frank would have accepted without qualifi-
cation.
"objective facts," "real" or "actual facts," "OF" - What took
place prior to litigation, but is never accurately or completely recon-
structed in a trial.
"paper rules" - The recorded legal rules, precedents, and prin-
ciples of law that guide judges in making their decisions.
"pre-trial fact-finding" - Frank's suggestion, borrowed from the
S.E.C. and other administrative agencies, for gathering the facts
prior to a trial or administrative hearing.
GLOSSARY OF WORDS AND PHRASES XIX
"procedural reformers" - This term refers to those who believe

that procedural reforms will make legal certainty and stability a part
of the judicial process and who are regarded by Frank as another
breed of "rule-fetichists."
"psychological jurisprudence" or "psychological realists" - Refers
to Frank, Lasswell, Robinson, West, Oliphant and others who rely
on a psychological analysis of law. While Frank would utilize for the
most part the work of child psychology, Lasswell would stress psycho-
analysis. West would capitalize on his psychiatric training, while
Robinson was a psychologist by profession.
"robe-ism" - Frank's term for judges who feel that the majesty
of the law is transferred to the public mind by the wearing of judicial
robes, elaborate judicial proceedings and the like, a view that he
berates as another example of the Law-as-Father.
"rule-fetichism," "rule certainty" or "rule worship" - Undue
worship of the legal rules as constituting the fundamental sources
of law.
"rule-skeptic" - According to Frank, these are the "right-wing"
legal realists who are skeptical of the legal rules, but not the facts as
found in particular cases, e.g., Llewellyn.
"scholasticism" and "platonism" - When used by Frank, these
terms are synonomous with "Bealism," "legal fundamentalism,"
and "legal absolutism." "Scholasticism" was also used by Oliphant.
"sociological jurisprudence" - Roscoe Pound's theory of law as
the institutional means for satisfying and protecting the social inter-
ests or ideals of a particular community at a particular time.
"subjective facts," "SF" - The facts that are brought out at a
trial and which are less than objective because of the element of
human memory and human fallibility, or what Frank would call the
"inherent inexactitude" of the fact-finding process.
"temporary absolutes" - Provisional or contingent rules, princi-
ples, ideals, or assumptions that must constantly bear the test of
experience and critical evaluation, and which constitute the basis for
Frank's philosophy of "possibilism."
"trial-by-combat" or "fight theory" - The game that adversaries
play in the court room in their attempt to win cases for their clients,
rather than attempt to discover the "truth" as nearly as is humanly
possible.
"trial court" - Any court of original jurisdiction where the facts
are initially investigated and presented in a specific case. For Frank,
the trial court is the heart of what he calls "court-house government."
"truth theory" - The opposite of "fight theory," or what Frank
would regard as the ideal basis for court room behavior, namely, the
attempt to ascertain the "objective" facts of the case, irrespective of
what party wins.
"upper-court myth" - The myth that upper or appellate courts
XX GLOSSARY OF WORDS AND PHRASES
are the most important courts that decide cases, whereas the major
legal activity, according to Frank, takes place at the level of trial
courts and juries.
"the value of lay ignorance" - Frank's description of one of
the ways in which the worshippers of rules preserve the basic legal
myth, namely, by keeping the lay public unaware of legal reality
and the true nature of the judicial process.
"word-magic" or "verbomania" - The use of legal language in
the perpetuation of lay ignorance about the law and especially the
perpetuation of the basic legal myth of rule certainty. Synonomous
with "Wousining." "Verbomania" was a term that was also employed
by Oliphant.
"Wousins" or "Wousining" - A term created by Frank and used
in Law and the Modern Mind (at p. 57) to illustrate the word-magic
and excessive verbalism of the legal fundamentalists, especially Beale.
Table of Contents
FOREWORD BY LEON GREEN VII
ACKNOWLEDGEMENTS XIII
GLOSSARY OF WORDS AND PHRASES USED IN THIS BOOK XV
INTRODUCTION 3
A Short Note on Methodology 7
A Brief Biographical Sketch of Jerome Frank 8
CHAPTER ONE - Foundations 01 american legal realism 13

Holmes' Legal Positivism: The Forerunner of Legal Realism 16
Roscoe Pound's Sociological Jurisprudence 18
Institutional and Anthropological Approaches to Law 21
Legal Realism and the Psychological Approach to Law 23
Jerome Frank's Contribution 26
CHAPTER TWO - The crusade against the "myth" 01 legal certainty 31

Why Do Men Crave Legal Certainty? 35
Legal Certainty: Frank's "Wasteland" of Modern Law 39
The Road to Liberation 42
The Consequences of Frank's Attack 46
CHAPTER THREE - Psychology as the new weapon 01 attack 51

Frank's War of Liberation 57
The Use of Psychological Materials: Jurisprudence as Therapy 59
The Future of Psychological Tools in the Study of Law 65
CHAPTER FOUR - The role 01 the judge in the judicial process 69

What Courts Do In Fact 73
The Anatomy of Court-House Government 76
The Judicial "Hunch": The Contrapuntal Strains of Frank's
Analysis of the Judicial Process 78
The Upper-Court Myth and Its Effects: Rule-Skepticism and
Fact-Skepticism 81
Metaphysical Questions 91
XXII TABLE OF CONTENTS
CHAPTER FIVE - Trial by jury and the problem of legal edu-

cation 93
Major Defects of the Jury System 98
Suggested Reform of the Jury System 99
The Conviction of Innocent Men 101
Jury Verdicts and the Problem of Cadi-Justice 104
The Relation of Legal Education to the Judicial Process 106
How to Improve Legal Education 107
Fusing Law and the Social Sciences: The Inter-Disciplinary
Approach 111
CHAPTER SIX - Frank's contributions to the philosophy of

A merican legal realism 117
Legal "Axioms" and Frank's Suggested Remedies 124
Criticism and Counter-Criticism of Jerome Frank's Philosophy
of Law and of Legal Realism in General 129
The Troublesome Problem of "Fact" and "Value" 143
SOME SELECTED OPINIONS OF JUDGE JEROME FRANK 151
A BIBLIOGRAPHY OF THE WRITINGS OF JEROME N. FRANK 157
GENERAL WORKS USED IN THIS STUDY 163
INDEX 175
The Legal Realism of Jerome N. Frank
A STUDY OF FACT-SKEPTICISM AND THE
JUDICIAL PROCESS
Introduction
Social science can thus in the long run best
attain its goal when those who cultivate it care
more for the scientific game itself and for the
meticulous adherence to its rules of evidence
than for any of the uses to which their discover-
ies can be put ....
MORRIS R. COHEN 1
... In spite of all the irrefutable logic of the

realists, men insist upon believing that there are
fundamental principles of law which exist apart
from any particular case, or any particular ac-
tivity; that these principles must be sought with
a reverent attitude; that they are being im-
proved constantly; and that our sacrifices of
efficiency and humanitarianism in their honor
are leading us to a better government. The truth
of such a philosophy cannot be demonstrated or
proved. It exists only because we seem unable
to find comfort without it.
THURMAN W. ARNOLD a
1 Morris R. Cohen, Reason and Nature; An Essay

on lhe Meaning of Scienlt/u Method (N.Y.: Harcourt,
Brace and Company, 1931), p. 349.
8 Thurman W. Arnold, The Symbols of G01Jernment
(New Haven: Yale Univ. Press, 1935), pp. 32-33.
This is the study of one man's ideas about the law. It will attempt to
systematically and critically assess the ideas of a modern American
legal thinker, the late Judge Jerome Frank, who was a leading
exponent of the so-called school of American "legal realism."
Since this is a philosopher's quest, there will be many pitfalls
along the way. To begin with, we immediately run into trouble
when we use the term "philosophy." We might roughly think in
terms of two categories, those who consciously and systematically
write on philosophical matters, or who write philosophically
about matters that fall into the realm of philosophy. Then there
are those writers who are neither conscious nor systematic in their
philosophical quests, but who nonetheless write about ideas with
a strong philosophical bent, and who enjoy the game regardless
of what they are labeled. Jerome Frank falls into the latter
category.
The desire to study Judge Frank's philosophy of law has many
reasons. Since he was a man of eclectic interests, the challenge of
systematic organization of his ideas was ever-present. He has
changed and expanded some aspects of his original writings, if
not always successfully, certainly with sincerity of purpose. 1
Perhaps the most significant reason for studying the legal
thinking of Jerome Frank was the fact that he has been a leading
provocateur in recent American legal thought. Few other figures
on the contemporary American legal scene could claim as fmit-
1 Frank devoted an entire appendix to his third book, II Men Were Angels (App.
V, pp. 276--315) to answering the critics of his first book, Law and the Modern Mind.
Of course, much of this material reinforced and rationalized the ideas that he had
expressed in his earlier work.
6 THE LEGAL REALISM OF JEROME N. FRANK
ful, colorful and active a career as that of Jerome Frank. Irre-

spective of how well-accepted his ideas have been, they have always
created a maze of critical discussion in legal periodicals and
among students of jurisprudence. There is little doubt that
Jerome Frank has been a key figure in the arguments concerning
the validity and efficacy of American "legal realism." Part of
this study will deal with some of the cardinal criticisms of
Frank's work, as well as his rejoinders to his critics.
Therefore, the main purpose of this study will be to systemati-
cally examine Jerome Frank's philosophy of law and its role in
modern society. A mere systematic arrangement of a man's ideas
is useful, but not sufficient in itself, so that my second purpose
in writing on Jerome Frank will be to attempt a critical evalua-
tion of his ideas and their place in recent American legal thinking.
What is meant by the term, "the modern mind," and especially
the modern legal mind? What significant ideas have helped to
mold American legal thought in the twentieth century? These,
and many similar questions, will plague us throughout this book,
but this is to be expected. Ideas, as I view the problem before us,
ought to be studied in a context of either intellectual or insti-
tutional history, or both. The "modern mind," whatever it is, is
the result of the accumulated knowledge of many minds. from
many fields of endeavor, and of much intellectual anguish. 1
Hence, I always want to keep Jerome Frank in the angle of
vision of modern society and modern thought, because these are
the things that have influenced his thinking, and which his ideas,
to a certain extent, have helped to shape. Legal philosophy, or for
that matter, any philosophy, operates in a symbiotic relationship
to the outside environment and to the thought outside of its own
purview.
I must admit that I was attracted to his thinking not via the
route of jurisprudence, but through his treatise on history and the
scientific method, Fate and Freedom, published in 1945. Here, I
1 "A civilization is, however, something more than a complex of institutions; it
always embodies a system of ideas, an ideology. Whether such ideologies have clearly
come into the consciousness of the members of a community, whether they are only
dimly and vaguely apprehended, whether they remain quite completely within the
field of the sub-conscious, they constitute the counterpart, the reflex, the reciprocal,
of the system of institutions. Institutions and ideologies are the warp and woof of the
fabric of history. A study of either by itself is incomplete and misleading .... "
Walter J. Shepard, "Democracy in Transition," 29 Am. Pol. Sci. Rev. 1-2 (1935).
INTRODUCTION 7
thought, was a man with fresh ideas. Erratic at times, impulsive
and excitable, Frank was above all a man who liked to delve into
questions in philosophy, psychology, semantics, intellectual his-
tory and into those areas of thought that attracted his special
attention, law and the scientific method. Few readers of the
writings of Jerome Frank could fail to be stimulated by his
voracious appetite for knowledge and the diversity and catho-
licity of his interests.
A SHORT NOTE ON METHODOLOGY
The reader ought to be forewarned about the danger of value-

judgments, both Jerome Frank's and my own. In writing a study
of this kind, no really empirical test of a man's ideas can be made.
The only yardstick that I will use for measuring the influence, as
against the validity or the accuracy, of Frank's ideas is the
quantity and the quality of legal criticism of his work. 1
This leads me to the value-judgments of Frank's appraisers,
and we compound possible error with more possible error. This
sounds somewhat defeatist, which it is not meant to be, but the
danger in any philosophical quest of this kind is to ignore the
almost innate pitfalls of philosophical inquiry, especially in the
social sciences. The problem of selecting source-materials (what
materials and whose materials) inevitably raises the question of
how and why these materials were used. Objectivity in social
science research, according to this view, is a matter of degree,
and depends upon the metholology used and the ability of the
individual researcher to understand and evaluate the materials
he uses. 2
I am not one who believes that a mere acknowledgment of
value-judgments is sufficient in itself. Even the learned Max
Weber knew that self-awareness is not enough. At the outset, let
1 For example, I found 37 book reviews of Law and the Modern Mind. 31 of them
in law journals. In the case of Courts on Trial, I tound 40 book reviews, 31 of them in
law journals. Of the 62 reviews of these two books published in various law journals,
a large number were written by prominent figures in American law. In my opinion,
this in no way indicates the quality of Frank's writing, but it does show the wide
interest in his work. Very few other books in the field of American jurisprudence
attracted so many reviewers.
2 I discussed this problem in more detail in a paper, "Concerning Value-Judgments
in Political Science," which I delivered at the first conference of the International
Society For General Semantics at the University of Chicago, June 22, 1951.
it be said that I will make judgments about Frank's work, but

these will be properly labeled as such, so that the reader can dis-
tinguish between what Frank said and what I think about what
he said.
I have read all of Jerome Frank's published writings on law and
politics, and as much criticism of his work as I could find. These
will serve as my primary source-materials. However, my unders-
standing of his work and the objectivity of my critique (in short,
my value-judgments) can always be questioned.
In evaluating Frank's writings on the law, I have tried to use
many different views of his work. The picture, in reality, is not
always a clear one, for there are strong arguments both for and
against most of Frank's ideas. My purpose in this study is that
of assessing his work in terms of the critical insights of prominent
men in the field of American jurisprudence, and not merely the
knowledge of the field that I could bring to bear on Frank's work.
Immersion in a man's work is both necessary and dangerous.
Sometimes it becomes almost impossible to extricate one's self
from the ideas that are being examined. To deal philosophically
with any body of thought requires some inspiration; yet, this need
not degenerate into either preaching or salesmanship. I do not
intend either in this study. I hope that the reader can both enjoy
and learn from this exegesis of one man's ideas.
A BRIEF BIOGRAPHICAL SKETCH OF JEROME FRANK
Jerome New Frank was born in New York City on September 10,
1889,:the sonofa lawyer, Herman Frank and Clara (New) Frank. He
attendedHyde Park High School in Chicago and received the degree
Ph. B. from the University of Chicago in 1909. In 1912, Frank
received the degree Doctor of Jurisprudence from the University
of Chicago Law School, where he was elected to Phi Beta Kappa.
He was admitted to the Illinois bar in the same year and joined
the Chicago law firm of Levinson, Becker, Schwartz and Frank,
specialists in corporation law. Frank married Florence Kiper, a
well-known poet and playwright, in 1914. They have one
daughter, Barbara.
While practicing law in Chicago, Frank was a member of Mayor
William E. Dever's "kitchen cabinet." During the period from
INTRODUCTION 9
1921-25, Frank helped to negotiate a traction settlement for the
city of Chicago that was later defeated by Samuel Insull, and also
did extensive corporate reorganization work. In a little over a
decade, Frank established himself as a higbly successful corporation
lawyer of liberal tendencies and a reputation for hard work.
In 1929, Frank joined the New York City firm of Chadbourne,
Stanchfield, and Levy. Following the publication of Law and the
Modern Mind in 1930, Frank lectured at the New School for
Social Research, and in 1932 he was appointed a research associ-
ate at the Yale Law Schoo1.
Jerome Frank entered the national picture in 1933, when the
then Professor Felix Frankfurter recommended him to the legal
staff of the Department of Agriculture, but the appointment was
blocked by James A. Farley. In the same year, Henry A. Wallace,
who was then the Secretary of Agriculture, appointed Frank gener-
al counsel for the Agricultural Adjustment Administration, and
he later took on the duties of general counsel for the Federal
Surplus Relief Corporation. In February, 1935, Frank resigned
from the A.A.A. following a battle with Chester Davis, but he
returned to Washington as special counsel for the R.F.C. in
railway reorganization matters, and for the P.W.A. 1
Following his return to private practice in 1936, Frank earned
$ 38,000 for helping to reorganize the Union Pacific railroad. He
was already one of the nation's leading experts on corporate fi-
nance when President Roosevelt appointed him a commissioner
on the Securities and Exchange Commission in December, 1937.
In May, 1939, Frank became chairman of the S.E.C. when
William O. Douglas was appointed Associate Justice of the
United States Supreme Court.
After four years on the S.E.C., Frank was appointed by Presi-
dent Roosevelt to the post of Judge of the United States Circuit
Court of Appeals for the second circuit, 2 a post that he held from
1 For the details of the exciting and at times tumultuous early days of the New
Deal, the reader should consult the numerous histories of the New Deal era of Ameri-
can politics.
B William Seagle wrote the following about Frank's appointment to the federal
bench: ..... His elevation to the bench last year was itself something of a presi-
dential coup d' etat. It was perhaps his [Roosevelt's] happiest appointment. For, as
those who follow the whirligig of jurisprudential theory must be aware, Jerome Frank
did not entertain conventional views of the nature of the judicial process... His
appointment therefore might be likened to the choice of a heretic to be a bishop of the
Church of Rome." Book Review, If Men We,.e Angels, 29 Va. L. Rell. 664 (1943).
May, 1941 until his sudden death on January 13,1957. In ad-

dition to his duties as a federal judge, Jerome Frank served as a
Visiting Lecturer in Law at the Yale Law School from 1946 until
his death in 1957 and was a Visiting Lecturer at the New School
For Social Research in 1946-47. 1 He was the author of six books
and over 50 articles, book reviews, and assorted papers.
Thus, the career of Jerome Frank was an extremely varied and
active one. In a period of forty-five years (1912-57), Frank was a
practicing lawyer, a law school teacher, a prolific writer, govern-
ment counsel, administrator, and a federal judge. His untimely
death in 1957 ended a rich contribution to the philosophy of
American law and a quarter of a century of service to the nation. 2
It would be presumptuous for this writer to think that a study
of Jerome Frank's ideas on the law would give the reader a clear
picture of Frank as dynamic law teacher, forceful and consci-
entious federal judge, or simply a brilliant conversationalist. He
was a man of many talents, and those who knew him intimately-
whether as student, fellow New Deal lawyer, or colleague on the
bench - will testify that the full impact of his ideas cannot be
fully understood without some appreciation of the enormous im-
pact of Frank's personality on those around him. 3
While this book is in no sense a judicial biography, the reader
1 Most of this information was found in Current Biography (1941), pp. 301-03,
and in 28 Who's Who in America 915 (1954-55 ed.).
2 The N ew York Times called Frank a "philosopher of law" in an obituary of J anu-
ary 14, 1957, p.23. The St. Louis Post-Dispatch devoted an editorial entitled "A
Judge With Open Eyes" in which they said: "The American judiciary could hardly
afford to lose Judge Jerome N. Frank of the United States Court of Appeals at New
York, dead in New Haven of a heart attack. And the American people can ill afford
the relative reluctance to follow his many suggestions for making a reality of 'equal
justice before the law.' ... Judge Frank was not a muckraker of the law, but agreed
with Justice Holmes that 'one may criticize what one reveres.' He sought im-
provement, and not altogether in vain.. .. He was one of Franklin D. Roosevelt's
'brain trusters.' But we may be sure that he would have sacrificed all else to give
American people courts ever more accessible and ever more fair." (January 15, 1957,
page 2C). For a rather interesting account of Frank during his days as chairman of
the Securities and Exchange Commission, see the portrait, "Intellectual on the
Spot," 35 Time, March II, 1940, pp. 71-77.
3 See 66 Yale L.J. 817-32 (1957) and 24 U. Chi. L. Rev. 625-708 (1957), memorial
issues devoted to Jerome Frank; Edward McWhinney, "Judge Jerome Frank and
Legal Realism: An Appraisal," 3 N.Y.L. Forum 113 (1957) and Book Review,
Not Guilty, 33 Ind. L.J. III (1957); "Jerome N. Frank, 1889-1957," which contains
the memorials delivered at the special joint meeting of the New York County
Lawyers' Association and The Association of the Bar of the City of New York, May
23, 1957; and Edmond N. Cahn, "Fact-Skepticism and Fundamental Law," 33
N.Y.U.L. Rev. I (1958).
INTRODUCTION 11
should keep in mind the tremendously creative (at times, ex-
plosive) atmosphere in which Frank as an active participant in
public affairs produced his ideas on the law. In the recent history
of legal thought in America, there is perhaps no better or more
forceful example of the happy combination of the man of ideas
and the man of action. This book is an attempt at examining one
of the important facets of a many-splendored personality.
CHAPTER ONE
Foundations of American Legal Realism

... The prophecies of what the courts will do in
fact, and nothing more pretentious, are what I
mean by the law.
OLIVER WENDELL HOLMES, JR.l
I use the phrase "the law" in the sense of

sequences of external facts and their concrete
legal consequences through the concrete operation
of governmental machinery.
JOSEPH W. BINGHAM 2
... Law defines a relation not always between

fixed points, but often, indeed oftenest, between
points of varying position. The acts and situ-
ations to be regulated have a motion of their
own. There is change whether we will it or not.
BENJAMIN NATHAN CARDOZO 3
1 Oliver Wendell Hoimes, Jr., "The Path of the Law,"

10 Haro. L. Rev. 457, 461 (1897); repro in his Collected
Legal Papers (N.Y.: Harcourt, Brace and Co., 1920),
p.173.
2 Joseph W. Bingham, "What is the Law?" 11 Mich.
L. Rev. I, 109 n. 29 (1912).
3 Benjamin N. Cardozo, The Paradoxes of Legal
Scunce (N.Y.: Columbia Univ. Press. 1927), p. II.
If we were to study the history of western thought since 1850,
perhaps the most important writers of the past century in terms
of their impact on modem American jurisprudence would be
Marx, Darwin, Comte, Freud, James and Dewey. Economic de-
terminism, evolution and historicism, positivism, pragmatism
and instrumentalism, and psychoanalysis have all had an influ-
ential part in shaping the main currents of the modem legal mind.
The past century has been an era of almost miraculous changes,
not only in terms of political evolution, but also in terms of the
rapid rise of modem technology, the growth of large cities with all
of the manifold problems of urban life, the growth of centrali-
zation of governmental power in the democracies as well as in the
neodictatorships and totalitarian systems, the rise of modem
mass communications, and lastly, the birth of the atomic age. 1
But if this past century was a century of great change, it was
also an "age of anxiety," to borrow the phrase of poet W. H.
Auden, an age of modem science that disdained things "metaphys-
ical," an age which took pride in the material accomplishments
of its empirical methods. 2
1 Ct.: "If legal history is read aright, these changes will impose a heavy burden
upon the legal order. For the law which always lags behind the social process will
have to be brought into some working proximity with these facts." Francis R.
Aumann, "Technology, Centralization, and the Law," 36 So. Atlantic Q. 278 (1937).
• Karl N. Llewellyn, writing on the period from 1870 to 1900, says: "And what
philosophy may hope for acceptance and utilization in such a situation? Positivism.
Let us forget 'right reason'; let us forget the bastard something known as morality;
let us acknowledge merely the obvious fact, in law, that law as is, is law. Justice may
be an ideal; in actuality it is an accident. A logical system exists to preserve the law
as is, and any other thinking is a somewhat absurd idealistic tendency, divorced from
facts of life." Llewellyn, "On Philosophy in American Law," 82 U. Pa. L. Rev. 205,
208 (1934).
And law, which has always been considered a conserving force

in society, could not remain unaffected by these changes in the
mode of man's living and the shape of his thinking. Law was bent
in many directions, and felt the impact of many outside influ-
ences, sometimes in harmony with, and sometimes contradictory
to past traditions. Law as idea and law as institution has helped
to shape, and in turn was shaped by, this past century of scien-
tific and intellectual discovery. The purpose of this chapter will
be to sketch some of these key ideas in relation to the various
schools of American jurisprudence that grew up around them.
HOLMES' LEGAL POSITIVISM:

THE FORERUNNER OF LEGAL REALISM
The impact of Darwin, and Comte after him, was felt heavily in
jurisprudence. Law as a fixed mechanical guide, as a given set of
rules that a judge could easily discover in the accepted treatises
and codes (what the late Morris Cohen called the "phonographic
theory" of the judicial function), was shattered by the posi-
tivistic and scientific impact of the late nineteenth century.l
More than any other figure in American law, the late Justice
Oliver Wendell Holmes was the man who laid the groundwork
for the various schools of "legal realism" that followed him into
the early part of the twentieth century.
In rejecting the mechanistic approach, Holmes took the
philosophy of positivism, which excluded everything but the
knowable, and applied it to the law. By centering his attention
on experience (as against mechanical legal rules, logic, or natural
1 " . . . The only certainties spared were the immediate certainties of sense, that
is, of experience. All generalizations were characterized as merely tentative or proba-
ble. The search for universal truths was condemned as chimerical. Strangely enough,
the positivists, resisting the Hegelians all along the line, were forced to defend the
outworn doctrine of the possibility of certain knowledge arising from experience. The
application of positivism to jurisprudence was immediate. Whereas legal facts or
specific legal instances could be known with certainty, legal generalizations must
always be tentative. With Hegelians battling the certainties of fact on the one hand
and the Positivists the certainties of 'law' on the other, it is no wonder that the nine-
teenth century became, par escellenu, the century of 'uncertainties.' Our guiding
thread still leads us through the maze. Legal autonomy is attacked separately from
two sides. The next philosophical stage witnesses an attack on both sides together."
Thomas A. Cowan, "Legal Pragmatism and Beyond," in Paul Sayre (ed.), Interpre-
tations of Modern Legal Philosophies: Essays fn Honor of Roscoe P0fI1IIl (N.Y.: Ox-
ford Univ. Press, 1947), p. 137. Cowan's last sentence refers to legal pragmatism.
FOUNDATIONS OF AMERICAN LEGAL REALISM 17
law), Holmes forged the link between positivism and pragmatism,
and thus gave rise to the functional study of actual legal events. 1
In the mind of Jerome Frank, Justice Holmes was the "com-
pletely adult jurist," a man whose monumental influence was the
intellectual foundation for a full fifty years of jurisprudential
controversy. 2
Those writers who felt that legal rules are neither self-evident
nor absolute took Holmes to their bosom, and the battle over the
meaning of much of what Holmes wrote was begun in earnest. 3
More than any other statement by Holmes, the following
quotation has been the hallmark of modern American legal
thinking, especially the school of "legal realism":
... The life of the law has not been logic: it has been experience. The felt
necessities of the times, the prevalent moral and political theories, intu-
itions of public policy, avowed or unconscious, even the prejudices which
judges share with their fellow-men, have had a good deal more to do than
the syllogism in determining the rules by which men should be govern-
ed .... 4
1 " ••• The ultimate aim of positivism is to separate the ought from the is for the
sake of the is, while the aim of the natural law philosopher is to serve the ought
while refusing to draw a sharp distinction between the ought and the is .... " Harold
G. Reuschlein, Jurisprudence - Its American Prophets; A Survey of Taught Juris-
prudence (Indianapolis: Babbs-Merrill, 1951), p. 439.
2 "He did not content himself with substituting an accurate description of legal
rights and duties for a false description. He pointed to the fundamental vice in most
prior legal thinking. He made it clear that traditional jurisprudence is founded upon
the erroneous notion - sometimes expressed but often implicit - that there are self-
evident truths about the judicial process which must not be and cannot be questioned,
from which self-evident truths a legal system can be worked out logically as the
ancient geometers had worked out their systems from self· evident geometrical
axioms. Holmes saw that law is not pure mathematics; that the so-called self-evident
truths of the traditional jurisprudence are not self-evident; and that many of the
axioms of legal thinking do not appear on the surface but are concealed and must be
dug out for inspection." Frank, "Mr. Justice Holmes and Non·Euclidean Legal
Thinking," 17 Cornell L.Q. 568, 571 (1932).
a The revolt against mechanistic doctrines in law, like that against mechanistic
doctrines in the other social sciences, was a revolt from forms to function, from con-
cepts to activities, from statics to dynamics, from individual ends to social ends,
from the satisfaction of intellectual ideals to the satisfaction of human wants. It
sought to rescue law from the tyranny of the past and give it to the present, to rescue
it from the dead and give it to the living. It asserted that law was made for man and
required it to conform to the needs and wants - and even the vagaries - of man. It
challenged at once the arrogance and the irresponsibility of jurists who regarded
themselves as above the battle and yet, like gods of Greek mythology, descended
from time t'l time to enter the fray. The challenge was, in fact, an old one, but not
until the turn of the century did it achieve some degree of respectability.... " Henry
Steele Commager, The American Mind: An Interpretation of American Thought and
Character Since the I880's (New Haven: Yale Univ. Press, 1950), p. 375.
4 The Common Law (Boston: Little, Brown and Co., 1881), p. 1. See Holmes,
supra p. 14, note 1.
The assult on logic and especially on syllogistic reasoning was

carried forth with vigor by John Dewey and his school, whose
pragmatist bent was felt throughout modem American philoso-
phy and education. As in the case of Holmes, Dewey felt that
logic had only limited utility, and that the core of an idea was
how it worked in actual practice, not its logical consistency or in-
consistency. 1
But when Holmes chose "experience" over "logic," what did he
really mean? Was this meant to be the death-knell for logical
inquiry in the law? Did this mean that legal ideas and juris-
prudence in general were not themselves part of the history of law?
Or was Holmes merely giving experience the prior claim to
attention over logic, which had held sway during the long pre-
twentieth century era of analytical jurisprudence? These and
many other questions have plagued the "legal realists" for
decades and still remain burning questions.
Nevertheless, Holmes' significant contribution to American
jurisprudence was his positivistic approach to the study of legal
phenomena, an approach which laid firm foundations for the
functional, sociological, and realistic schools of legal thought that
followed Holmes' assault on mechanistic jurisprudence. 2
ROSCOE POUND'S SOCIOLOGICAL JURISPRUDENCE
Once the myth of mechanical legal rules was shattered, and

Justice Holmes' positivistic approach to law had gained populari-
ty, other areas of the law became vulnerable to broader analysis.
1 Referring to his own arguments against logic, Dewey, in an article which created
widespread interest, wrote: "They indicate either that logic must be abandoned or
that it must be a logic relaHw to consetjfU11Ces rat1lef' than to antecedents, a logic of
prediction of probabilities rather than one of deduction of certainties." Dewey,
"Logical Method and Law," 10 CorneU L.Q. 17,26 (1924). Needless to say, Dewey
as philosopher was much admired by some of the legal realists.
S For a succinct discussion of Justice Holmes, the realist school, and legal function·
alism, see Morris R. Cohen's essay, "A Critical Sketch of Legal Philosophy in Ameri·
ca," in Law: A Century of Progress, I835-I935 (N.Y.: New York Univ. Press, 1937),
vol. two, pp. 300-14. Cohen's discussion of the intellectual foundations of American
legal realism is quite interesting. After mentioning Holmes and Bingham, and the
contributions of Brooks Adams and Melville Bigelow to the volume, Centralization
aflll the Law (Boston: Little Brown, 1906), Cohen wrote: "On a somewhat wider
philosophic basis was Bentley's The Process of Government, in some respects still
the most vigorous expression of legal realism in America.... " (at 304) Bentley's
book, still regarded as a classic in its field, was published in 1908.
Law as an institutional means for social control, as a device that

men created for their own social good, came into view. 1
Roscoe Pound, as law teacher and as publicist, did more than
any other man in America to carry legal analysis into the inter-
stices of sociology itself. Pound's impact on American legal
education, as well as on contemporary jurisprudence, has been
enormous. 2
But to some legal realists, especially Jerome Frank, Pound was
a right-wing traitor who distorted Holmes' legal teachings. 3
Whereas, some legal realists could dispense with values as such,
with ought-ness (which they replaced with the is-ness of legal
activity), Pound felt that men's ideas about law are still an inte-
gral part of jurisprudence and cannot be ignored merely because
some men have exaggerated the use of metaphysics in the past. 4
1 " •.. The attitude of the sociological jurist is essentially functional. With the
debates of Austin, Gray, and Carter as to whether law is found or made, the sociologi·
cal jurist has little patience. He rather looks upon the law as a social institution which
may be consciously bettered by deliberate effort whether through a process of mak-
ing law or finding it. The sociological jurist affirms the efficacy of effort. He finds
the sanction of law not in the force of Austin or the custom of Carter but in the social
ends which law is designed to serve. From this it follows that the sociological jurist
has no essential preference for anyone type of legal precept (e.g. statute or custom)
except as one particular type of precept may more effectively serve as a means to
secure the desirable end in a particular situation. Lastly, the sociological jurist is a
pragmatist, unless perhaps he be a rigid positivist or a neo-realist. To be either posi-
tivist or neo-realist is often not inconsistent with a sympathetic adherence to a set
of helpful idealistic principles which, more likely than not, were cradled in the meta-
physical school of philosophy." Reuschlein, op. cit. sUfwa p. 17, at. 129-30.
I As an innovator, Pound had first to free himself from the bonds that the mechanis-
tic and rationalistic approaches of the analytical and historical schools of juris-
prudence of the nineteenth century had placed on juristic thought. Having been trained
as a botanist in his early years (he held a Ph. D. in botany from the University of
Nebraska and taught that subject there) before he went to the Harvard Law School,
Pound had an unusual background for the task he set before himself. Some writers
on American law feel that Pound's botanical training is responsible for his taxonomic
bent in jurisprudence. This, I would think, was an asset in his intellectual training,
not a weakness. Nevertheless, Pound had a thorough grounding in the scientific
method of the natural sciences, unlike most of his later detractors, who regard them-
selves as "scientists." C/., Edwin W. Patterson, "Some Reflections on Sociological
Jurisprudence," 44 Va. L. Rev. 395, 397 n. 7 (1958) for a similar view.
a "Pound was the right wing of tlle Holmes' movement. It was in the highest
degree unfortunate that the first vastly influential teacher to take over Holmes'
insight should thus have warped it. It might almost be said that the Holmes' point
of view would have been less retarded today in its consequences had Pound opposed
it. For his mode of partially adopting it was to confuse and mislead those whom he
influenced." Frank, "Are Judges Human?" 80 U. Pa. L. Rev. 17, 18 (1931).
4 ..... This question of ought turning ultimately on the theory of values is the
most difficult one in jurisprudence. Those who long for an exact science analagous
to mathematics, physics, or astronomy are inclined to seek exactness by excluding
this problem from jurisprudence altogether. But such a jurisprudence has only an
illusion of reality; the significant question is the one excluded." Pound, "Juris-
The study of law required an entirely new viewpoint of man's

needs and desires and of the new social institutions that were
being created in an era of rapid social change. If law was to be
pragmatic, ends as well as means had to be kept in view. To be
exclusively empirical was to ignore aspects of law that were
nonetheless present. The law was no longer a simple rational
object of study, but was a complex system of interrelationships. 1
What Pound sought was not a denial of the positivistic trend,
but rather a channeling of the movement into what he called
social engineering. Law as an instrument of social control at all
levels of governmental behavior was the core of Pound's philoso-
phy of law. The study of the law in action was an important,
but not the exclusive, part of Pound's sociological juris-
prudence. 2
Some writers have labelled Pound's philosophy of law as
"functional" jurisprudence. Others call it "pragmatic" or "ex-
prudence," 8 Encyc. Soc. Sci. 477, 485 (1935). See chap. IV, "The Problems of Values,"
in Pound's Social Control Through Law (New Haven: Yale Univ. Press, 1942), pp.
103-34.
1 "For the simple picture of the legal order painted by the historical school, with
its one ideal to which it attributed and by which it solved everything, must give way
before the results of psychology and psychological sociology. We must give up the
quest for the one solving idea. The actual legal order is not a simple rational thing.
It is a complex, more or less, irrational thing into which we struggle to put reason
and in which, as fast as we have put some part of it in the order of reaSOD, newirration-
alities arise in the process of meeting new needs by trial and error.
If the argument up to this point has been sound, we require an interpretation of

legal history that will take account of the men who act in finding and adapting legal
materials, of the materials with which they act, of the circumstances under which
they act, and of the purposes for which they act.... " Pound, Interpretations of Legal
History (Cambridge: Harvard Univ. Press, 1946), pp. 21, 141. It is my feeling that
Dean Pound's early training as a botanist gave him an invaluable sense of organic
unity and interrelationships, and of the complexity as well as the unifying elements
of nature and of human knowledge. Had his botanical training come after his law
study, there is no telling what his future might have been. However, it can be posi-
tively asserted that regardless of this training. Frank still regarded Pound as a wolf
in sheep's clothing. For a discussion of Pound's over-classificatory bent, see Francis
H. Bohlen, Book Review, Law and the Modern Mind, 79 U. Pa. L. Rev. 822, 823(1931).
a " ... Sociological jurisprudence may be said to be an attempt to reconcile the
legitimate demands of liberty and authority, individualism and solidarism, change
and stability." Moses J. Aronson, "Tendencies in American Jurisprudence," 4 U.
Toronto L.J. 90, 99 (1941). C/., Max Radin: "The law is not right reason, nor the
means of a good life, nor the framework of society, nor the foundation of the world,
nor the harmony of the spheres. It is a technique of administering a complicated
social mechanism, so complicated that it reaches at some point almost any sphere
of human conduct, but often only barely reaches it. The technique can dispense with
neither law nor experience.... " Law as Logic and Experience (New Haven: Yale
Univ. Press, 1940), p. 163.
perimental" in its approach. But regardless of the label, the major

tenet of Pound's school of jurisprudence is that the sanction of
law is not found in the command of a sovereign, or in a mechani-
cal set of legal rules or principles, or even in the traditional
customs or mores of the community, but is found in the social
ends which law, as an instrument of the community, must serve.
In order to understand and describe what the law is, we must
understand what the law does. But always implicit in the balanc-
ing of social interests, and in the preservation of the communi-
ty's stability, is the problem of values. Pound has never denied
this, any more than William James denied the reality of religious
experience. The problem of values, from the point of view of the
sociological jurist, is not the search for a final set of eternal truths,
but is rather the choice of values that can best serve the social
interests of a community in a particular situation. 1 Dig deep into
the Poundian thesis and the pragmatic test will always be found.
It is implicit in almost all of the so-called functionalist writings on
the law. 2
INSTITUTIONAL AND ANTHROPOLOGICAL
APPROACHES TO LAW
Whereas Pound's emphasis was on the law itself, and its function-
ing in relation to the total social organism (society), other writers
took the pragmatic, functional approach another step further in
their institutional and anthropological approaches to the study
of law. The entire basis of legal "reality" was broadened to
include the study of all of the influences that helped to shape the
legal order, especially in an era of dynamic and rapid social change. 3
1 In this connection, see the Goble-Kenealy and Carpenter-Mueller disputes, the
former at 41 A.B.A.J. 403 (1955),1 Catk. Law. 259 (1955), 2 Catk. Law. 226 (1956),
3 Catk. Law. 22 (1957); the latter at 7 J. Legal Ed. 163 (1954), 7 J. Legal Ed. 567
(1955),8 J. Legal Ed. 185 (1955).
2 " ••• Sociological jurists looking at law functionally have been more interested
in what law does and how it does it than in what it is and so have looked primarily
at the legal order .... " Pound, "jurisprudence," 8 Encyc. Soc. Sci. 477, 478 (1935).
For a critical discussion of Pound's views, see Eugene V. Walter, Tke Idea of Justice
in Sociological Jurisprudence (Unpublished Doctoral dissertation, Department of
Political Science, University of Minnesota, 1953). Dr. Walter regards the neo-realist
"group" as a part of the sociological school.
3 "Professor j. W. Bingham, in "What is Law?" ... probably began the neo-
realist exegesis." julius Stone, Tke Province and Function of Law; Law as Logic,
Justice and Social Control (Sydney, Australia: Associated General Publications Pty.,
Ltd., 1946), p. 415 n. 131. Another "pioneer" article was Professor Arthur L. Cor-
bin's "The Law and the judges," 3 Yale Rev. 234 (new series, 1914).
Douglas, Shanks, Bede, Means, Arnold, Hamilton and others

studied law institutionally in tenns of the economic arder. 1 Karl
Llewellyn chose to study a primitive society, the Cheyenne Indians
of the American west, in order to see how legal sanctions differ
in various cultures. 2 Others merely swept legal study into the
whole panorama of the social sciences. 3
Still others carried the anthropological and comparative
approaches to law into the field of comparative and international
law. Sometimes the comparison was on the level of ideas; at
other times, the level of institutions. Noteworthy examples have
been the studies in comparative international law at the Harvard
Law School and the University of Chicago Comparative Law
Research Center, and the Studies on Soviet law and juris-
prudence by Professor Harold J. Bennan at the Harvard Russian
Research Center and Professor John N. Hazard at Columbia
University's Russian Institute. 4
1 See William O. Douglas and C. M. Shanks, "Insulation From Liability Through

Subsidiary Corporations," 39 Yale L. I. 195 (1929); Walton H. Hamilton, "Affec-
tation With a Public Interest," 39 Yale L.I. 1089 (1929); Gardiner C. Means and
Adolf A. Berle, The Modern Corporation and Pl'ivate PI'O'/>my (N.Y.: Macmillan Co.,
1932); Thurman W. Arnold, The Symbols ot Gove1'nment (1935) and The Folklore ot
Capitalism (New Haven: Yale Univ. Press, 1937); Merle Fainsod and Lincoln Gor-
don, Government and the Amerkan Economy (N.Y.: W. W. Norton and Co., 1941,
rev. ed., 1948).
I Karl N. Llewellyn and E. A. Hoebel, The Cheyenne Way: Contlkt and Case Law
in Pl'imitive lurispl'Uilence (Norman: Univ. of Oklahoma Press, 1941). Ct. Bronislaw
Malinowski, Cl'ime and Custom in Savage Society (N.Y.: Harcourt, Brace, 1926);
A. R. Radcliffe-Brown: "In its most elementary developments law is intimately
bound up with magic and religion; legal sanctions are closely related to ritual sanc-
tions. A full understanding of the beginnings of law in Simpler societies can therefore
be reached only by a comparative study of whole systems of social sanctions." Rad-
cliffe-Brown, "Law-Primitive" in 9 Encyc. Soc. Sci. 202, 206 (1935), repro in his
Stl'uctul'e and Function in Primitive Society (London: Cohen and West, Ltd., 1952),
p. 219; David Riesman, "Toward an Anthropological Science of Law and the Legal
Profession," 57 Am. I. ot Soc. 121 (1951).
8 See Lawrence K. Frank, "An Institutional Analysis of the Law." 24 Col. L. Rev.
480 (1924); Nathaniel Cantor, "Law and the Social Sciences," 16 A.B.A.I. 385 (1930);
David Riesman, "Law and Social Science: A Report on Michael and Wechsler's
Classbook on Criminal Law and Administration," 50 Yale L. I. 636 (1941); Thomas
A. Cowan, "The Relation of Law to Experimental Social Science," 96 U. Pa. L. Rev.
484 (1948); the preface and section entitled "Conclusion: Law and Social Science,"
in Jerome Michael and Mortimer J. Adler, Cl'ime, Law and Social Science (N.Y.:
Harcourt, Brace, 1933), pp. 382-84; Huntington Cairns, Law and the Social Sciences
(N.Y.: Harcourt, Brace and Company, 1935).
4 Professor Hazard, both in his writing on Soviet law and jurisprudence, and on
the teaching podium, has tried to be the dispassionate observer of Soviet legal
behavior. In my opinion, these efforts have not always been successfnl because Soviet
law in theory is sometimes quite different (at times radically different) from Soviet
law in action.
Despite their topical differences, all of these approaches to
the study of law are held together by a common desire to study
the law in action, whatever the tools of analysis might happen
to be. Some writers have used economic analysis as the core of
their studies, others sociological tools (e.g., Jerome Hall and the
Gluecks), and still others, the anthropological study of legal
institutions and social mores (Llewellyn). At the rooot of these
various approaches to the study of law, one can almost always
find the pragmatic tradition laid down by Holmes, Dewey,
Pound, and their followers. 1
With the advent of Freudian psychology and Watsonian
behaviorism, another school of jurisprudence came into being,
viz., behavioristic jurisprudence, which was short-lived and per-
haps only a transitional stage in the subsequent development of
the psychological side of American legal realism. Behavioristic
jurisprudence was much too mechanical for the emancipated
"functionalist" writers of modem vintage. Although it could
add some light to the behavioral study of judicial action, it was
far too monistic in its approach to legal science. 2 In actual
practice, however, the behaviorists were not any less dogmatic in
their assertions than some of the addicts to Freudian psychoanaly-
sis, whom I will discuss next.
LEGAL REALISM AND THE

PSYCHOLOGICAL APPROACH TO LAW
George W. Paton, reviewing the literature of modem juris-

prudence, has attempted a classification of writers advocating a
1 C/., "Effectively, the law is what it does .... It exists, so to speak, in the inter-
stices of the social structure and regulates, more or less, all the exchanges between
the elements of that structure. The law is not a body of abstract rules under which
cases are formally subsumed. I t is more truly a tissue of interacting elements of human
behavior, beginning with the formulation of a rule by a legislature, continuing in the
decision of a court and the consequent action of an official, and having its final inci-
dence in the modified behavior of those for whom or against whom the law is enforc-
ed.... For a knowledge of the actual interrelationships of human beings, of their
actual behavior, and of the effects of their behavior, is necessary to that conscious
and methodical choice of ends and means which the scientific study of law requires."
George H. Sabine, "The Pragmatic Approach to Politics," 24 Am. Pol. Sci. Ref}.
865,878-79 (1930).
I E.g., G. H. T. Malan, "The Behavioristic Basis ofthe Science of Law," 8 A.B.A.].
737 (1922) and 9 A.B.A.]. 43 (1923); Herman Oliphant, "A Return to Sea,e Decisis,"
14 A.B.A.]. 71, 159 (1928).
functional approach to law. Paton places Roscoe Pound's socio-

logical jurisprudence in the "right wing" of this modern trend in
American law, and the legal realists in the "left wing" of the func-
tional school; 1 Jerome Frank is then the left wing of the left wing.
Since most of the legal realists would trace their origins to the
philosophical skepticism of Holmes, the real problem is not that
of finding the origin of their ideas as much as it is the variation in
interpretation of what American legal realism is supposed to
represent. Karl Llewellyn has vigorously denied the existence of
a single school of legal realism. 2 And Roscoe Pound has always
reminded his fellow brethren of the need for toleration of many
schools of legal thinking. 3
The binding force of all of the legal realists was their action-
approach to law, and their continual reiteration of the assertion
that law is not a body of rules, but a set of facts that can be ob-
served in the official actions of courts or other public officials. 4
Having rejected the rationalistic approach of the mechanistic
and analytical schools, the legal realists set out to make jurispru-
dence an empirical study of actual events. Perhaps the basic dif-
ference between Pound's "functional" jurisprudence and the
left-wing legal realists is the degree of emphasis on empiricism and
the content of the materials being studied. 5
1 A Text·Book of JU1'isp1'udence (Oxford: Clarendon Press, 1946 1st 00.), pp. 18-22.
2 "Some Realism About Realism-Responding to Dean Pound," 44 Ha1'v. L. Rev.
1222, 1255-56 (1931). Llewellyn has always been skeptical of the psychoanalytical
approach to the study of legal behavior.
S " ••• But in the house of jurisprudence there are many mansions. There is more
than enough room for all of us and more than enough work .... " Pound, "The Call
For a Realist Jurisprudence," 44 Ha1'v. L. Rev. 697, 711 (1931).
4 Generally speaking, the realist school has included such men as Frank, Hamilton,
Llewellyn, Powell, Cook, Oliphant, Moore, Radin, Hale, Yntema, Hutcheson, Pat-
terson, Arnold, Robinson, Bingham, Lasswell, Lerner, Laski, Boudin, Garlan, Green,
Douglas, Felix Cohen, Nelles, Rodell, and McDougal. Harold G. Reuschlein differs
from this somewhat. He classified Cook and Oliphant as exponents of "The Scientific
Method" and treats Hamilton separately, although he admits that he is a realist.
Patterson is with Cardozo, Cairns, Morris Cohen, Fuller, Hall, and Cahn in a chapter
entitled "Integrative Jurisprudence." Moore is classified as an "institutionalist"
and is treated alone. Judge Hutcheson of "hunch" fame is discussed in "The Reign
of Law." Table of contents, Reuschlein, Jurisp1'udence-Its Ame1'ican P1'ophets.
Needless to say, these categories are not fixed and if the general requirements of
the legal realist school are stated, most of the above-mentioned men could be included.
6 " ••• The new realists have been doing good work at this point. But such critical
activity, important as it is, is not the whole of jurisprudence, nor can we build a
science of law which shall faithfully describe the actualities of the legal order and
organize our knowledge of these actualities, merely on the basis of such criticism.
There is as much actuality in the old picture as in the new. Each selects a set of as-
Most legal realists could accept Sabine's definition of legal
behavior, 1 but few would go as far as did Schroeder, Frank,
Lasswell, Oliphant, Robinson, and West in their defense of
psychoanalysis and the use of psychological materials. As early
as 1918, one writer, Theodore Schroeder, was setting a fast pace
for the psychological legal realists, a good decade ahead of Frank
and Lasswell. 2
For Harold Lasswell, the free-phantasy method was the elixir
of the new jurisprudence, a jurisprudence, one might add, that
would not only free us from the logical fetters of the past, but also
from all of the prejudices and misconceptions of the pre-psycho-
analytical era of the law. Although psychological jurisprudence
had much to contribute to the new trends in legal thinking, it
was perhaps regrettable that a nihilistic stream of influence
tended to mar the really important insights that this school
contributed to a fuller understanding of the judicial process. 3
pects for emphasis. Neither portrays the whole as it is.. . .. Faithful portrayal of
what courts and lawmakers and jurists do is not the whole task of a science of law.... "
Pound, supra p. 24, at 699-700.
1 Page 23 supra.
2 "By the deductive application of the general psychoanalytic principles we come
to the conclusion that every judicial opinion necessarily is the justification of the
personal impulses of the judge, in relation to the situation before him, and that the
character of these impulses is determined by the judge's life-long series of previous
experiences, with their resultant integration in emotional tones." Theodore Schroe-
der, "The Psychologic Study of Judicial Opinions," 6 Calif. L. Rev. 89, 93. (1918).
Note the use of the word, "necessarily." which is the danger that most of the ex-
tremists of this school faced later on, succumbing in one fashion or another to the
blatant assertion that the exposure of the unconscious drives of the individual judge
will tell us everything we had failed to learn from jurisprudence before the birth of
Sigmund Freud.
3 This is a typical example of Lasswell's approach: "Free phantasy is not a momen-
tary relaxation of selective criticism, but a prolonged emancipation from logical
fetters.
It would be possible to fill many volumes with illustrations of the hitherto unseen
meanings which have been discovered by men and women who learned to use the
free-phantasy technique. They have often been able to find how and why their
emotions tended to be aroused favorably or unfavorably toward individuals of their
own or the opposite sex who exhibited certain traits, and to understand why they
tended to choose certain secretaries, to sponsor certain proteges, and to be impressed
by certain witnesses and attorneys. They have been able to inspect the phraseology
of law, politics, and culture, and to extricate themselves from many of the logically
irrelevant meanings which they tended to read into it." Lasswell, "Self-Analysis
and Judicial Thinking," 40 Int'l J. of Ethics 354, 358, 361, (1930). Lasswell goes on
to say that both logic and free-phantasy method are necessary for the training of
judges, administrators, and theorists. In his book, Power and Personality (N.Y.:
W. W. Norton, 1948), Lasswell was bold enough to recommend the psychoanalysis
of all future political candidates and leaders. Neither major party has, as yet, seri-
ously considered this suggestion.
JEROME FRANK'S CONTRIBUTION
Most of the legal realists could accept the contributions of Holmes

and Pound without sacrificing their sense of balance for a novel
approach to the study of law. 1 The enfant terrible came in 1930,
with the publication of Jerome Frank's first book, Law and the
Modern Mind. 2 Lasswell's articles had presaged what the
psychological extremists had in store, but Frank's book was the
storm-raiser if ever there was one. Even as confirmed a legal
realist as Karl Llewellyn could not swallow whole-hog the tenets
of psychoanalysis, the fetish, the father-image, and the hallowed
free-phantasy technique. 3
1 Even a political scientist like the late Charles Grove Haines could understaund
the need for behavioral study of the law without addiction to either free-phantasy or
hypnosis: "While in theory, then, we have often been led to believe that constitutional
law has been developed solely through the application of the rules of formal logic in
accordance with well established principles, in reality we have found it has been
to a considerable extent the result of human forces in which the personality of the
judges, their education, associations, and individual views are of prime importance."
Haines, "General Observations on the Effects of Personal, Political, and Economic
Influences in the Decisions of Judges," 17 Ill. L. Rev. 96, 113-114, (1922). Ct. Max
Rheinstein, "Who Watches the Watchmen?" in Interpretations ot Modern Legal
Philosophies 601-02 (Sayre ed. 1947).
2 New York: Coward-McCann, 1930 (and five subsequent reprintings). This book
still remains a landmark in modern American jurisprudence, especially in its attempt
at applying the tenets of psychoanalysis and child psychology to the behavior of
judges and juries. Having broken through the "unconscious," Frank felt that the
myth of legal rule certainty, which he called a fetish because it had become a kind
of father-substitute, could be exposed and eliminated, with the end-result being self-
awareness. Judges would no longer need to deceive themselves or the public. And
once the "truth" was known and proclaimed throughout the land, glory be to juris-
prudence and the legal profession for this new freeedom and self-knowledge! The
"unconscious" became the "inarticulate major premise" of psychological legal
realism. (Ct., Holmes, dissenting opinion in Lochner v. N. Y., 198 U.S. 45, 76 (1905),
"The Path of the Law," 10 Harv. L. Rev. 457, 466, (1897), repro in his Collected Legal
Papers 167, 188 (1920). Following Frank's Law and the Modern Mind (1930), Lasswell
published PsychoPalhology and Politics (Chicago: Univ. of Chicago Press, 1931);
Thurman W. Arnold, his two books, The Symbols ot Gveronmenl (1935) and The
Folklore oj Capitalism, (1937); and Edward S. Robinson followed with his Law and the
Lawyers (N.Y.: Macmillan, 1935). All of these men, together with Myres S. McDougal
and Walton H. Hamilton, were at one time or another associated with the Yale Law
School, which helped to father and nurture the psychological study of law and legal
behavior.
a "One's first reaction to this is amazement. How is it possible for the canny
student who discriminates so skillfully the proved from the dubious when reading a
legal writer to swallow at a gulp a yearning for pre-natal serenity which is not only
unproved but unprovable? How can the same mind which cuts through rule and
legal concept to bare decision accept as dogmatic Must-Be's such stereotyped psy-
choanalytic concepts as womb-yearning, father-omnipotence, father-substitution, law
as the father-substitute - accept them as applying not to some persons, but to almost
The failure to understand the importance of values, the
exaggerated use of psychological techniques, 1 and at times, a
misuse, or even a distortion of the scientific method and its aims
have been the major criticisms of the left-wing legal realists. 2
Describing the Is of experience does not prescribe the Ought, and
furthermore, the careless use of these two terms (is and ought) as
though they were synonomous elements in a science of the legal
order, has been a cardinal sin of those writers who regard
themselves, in and out of the law, as "empiricists."
Benjamin Cardozo, Morris Cohen, and Max Rheinstein have all
made the very important point that when the myth of absolute
legal rules has been broken, something adequate must take its
place, and scientific method alone is not the substitute. 3
Jerome Frank, on many occasions, both in his speeches and in
his writings, has persistently tried to deny his addiction to the
psychological approach to law or to any other single approach.
One particular speech that he delivered before the Association of
American Law Schools' annual meeting in Chicago on December
all. The basic fallacy of whole· hog psychoanalytic theory is the assumption that what
may well be possibly or even probably otten true is always or almost always true."
Llewellyn, Book Review, "Legal Illusion," in the symposium on Law and the Modern
Mind, 31 Col. L. Rev. 82, 85-86, (1931).
1 "One cannot accept so simple an explanation of so complex a psychic pheno-
menon. Indeed, one is left to wonder what experience of the author's nursery days
could have left him so dogmatic and unscientific in his explanation of that want of
scientific open-mindedness in the law which he lays bare with such acuity and
gusto." David F. Cavers, Book Review of Law and the Modern Mind, 37 W. Va.
L. Q. 322, 324, (1931).
2 " ••• Realism is still in the early states of that infantile disease of adjustment to
the scientific virus which all the disciplines, physical as well as social, have experienc-
ed and outgrown.
Without denying the urgent need and invaluable utility of objective information,
there are still many sceptics, however, outside the fold who persis in their failure to
see how even the most accurate knowledge of the manner in which the law in all its
ramifications actually functions could by itself alone supply the norms or standards
which must guide the law as a progressive institution of social control." Aronson,
supra p. 20, at 102-03, 106. Ct., Max Radin, "Legal Realism," 31 Col. L. Rev. 824
(1931).
3 Rheinstein, writing about the myth of legal rules, says: "To us, who have eaten
from the tree of knowledge, that happy state of innocence is no longer possible ....
In the age of psychoanalysis, judicial self-deception simply became impossible. It has
been destroyed, and with it there has been destroyed one of the most effective
guarantees of judicial law observance. That destruction was inevitable and cannot
be reversed. But there remains the task of establishing, or re-establishing, other
safeguards, lest the door be opened to a despotism of judges which would be no less
dangerous than any other despotisms." Rheinstein, "Who Watches the Watchmen?"
supra p. 26., at 602. For Cohen and Cardozo, a legal system in flux demands some
signposts; if not fixed points, at least directional signals.
30, 1933, still remains the best short statement of his philosophy
of legal realism. In this speech, Frank said:
Parenthetically, let me say that realistic jurisprudence was an unfortu-
nate label, since the word "realism" has too many conflicting meanings.
In the light of its congeniality with experimental economics. I suggest that
realistic jurisprudence be renamed "experimental jurisprudence" and
that those who lean in that direction be called "experimental." The atti-
tude of the experimentalists among the lawyers and economists cannot
be adequately compressed into a few words. But briefly it can be described
thus: These men are critical students of institutions who are committed
not to mere detached study but are devoted to action on the basis of their
tentative jUdgments.... 1
Having only barely begun the statement of his argument,
Frank, in my opinion, has already made two serious mistakes:
(1) he has given up the term "realistic jurisprudence" for purposes
of clarification, but this has led him into further confusion in the
use of terminology, for in his later writings, Frank employs such
terms as "legal actualism," "legal observationism," "pragmatic
jurisprudence," "experimental jurisprudence," and "possibi-
!ism." (2) As I understand the scientific method, a detached
empirical bent does not imply commitment to any particular set
of values (except those of the scientific method itself, which serve
as methodological and not ethical norms). 2 Yet, Frank openly
asserts that the "experimentalists" are men of action, which raises
a number of questions regarding the relationship of the scientist
(as scientist) to the problems of social reform, and particularly the
question of value-judments. 3 Perhaps Frank is implying that
1 "Experimental Jurisprudence and the New Deal," 78 Congo Rec. 12412 (1934),
originally given as an address at the 31st annual meeting of the Association of Ameri-
can Law Schools, repro in the Congressional Record and also under the title, "Realism
in Jurisprudence," in 7 Am. L. School Rev. 1063 (1934). For bibliographical materials
on American legal realism, see Edwin N. Garlan, Legal Realism and Justice (N.Y.:
Columbia Univ. Press, 1931), pp. 135-52, and Karl N. Llewellyn, "Some Realism
About Realism-Responding to Dean Pound," 44 Haro. L. Rev. 1222, 1257-1259,(1931).
For the best critical assessment of American legal realism in article form, see Her-
mann Kantorowicz, "Some Rationalism About Realism," 43 Yale L. J. 1240 (1934).
S "To subordinate the pursuit of truth to practical considerations is to leave us
helpless against bigoted partisans and fanatical propagandists who are more eager to
make their policies prevail than to inquire whether or not they are right .... " Morris
R. Cohen, Reason and Nature: An Essay on the Meaning of Scientific Method 350
(l931).
8 See my article, "The Sociology of Japanese Relocation," 7 ETC.: A Rev. of
Gen. Semantics 222 (1950), where I discussed some recent attempts to arrive at
scientifically-sound research in the social sciences. Cf., on the problem of the scientific
method and its practical applications, Morris R. Cohen wrote: " ... This is not to
deny that compassion for human suffering and the desire to mitigate some of its
"oughtness" has now been replaced by "ifness" (what is possible
is the tentative mid-point between the "is" and the "ought").
How can a detached empirical attitude be created by the
"experimentalists" if their primary interest is the "immediate"?
Is science the objective study of reality (within the limits set by
human knowledge and fallibility), or is it what Frank calls the
search for "a better future"? Without answering these questions,
Frank then turns to a discussion of the experimentalist approach
to the study of the judicial process:
... It has frequently expressed its doubt as to the efficacy of legal thinking
which purports to begin with so-called "legal principles." It inclines to
the belief-and here, forlackoftime, I am talking sketchily - that many
judges, confronted with a difficult factual situation, consciously or uncon-
sciously, tend to commence their thinking with what they consider a desira-
ble decision and then work backward to appropriate premises, devising
syllogisms to justify that decision. They see that many judges phrase the
two vague variables - the so-called "facts" of the case and the so-called
"rules of law" - so as to produce opinions aesthetically and logically
satisfactory in support of judgments and decrees in accord with what they
think just and right.!
It is the hope of this writer that some of Holmes' "cynical acid"
will help the reader to wash away some of the trivia that is ever-
present in much of the realist and anti-realist literature. 2
Jerome Frank has been a trail-blazer in the area of the relations
between law and the social sciences. Especially in his early es-
pousal of psychological theory, he has been a man who refused to
be tied to the parochial "every man to his own" frame of refer-
ence. For Frank, as for poet Robert Frost, good fences do not make
good neighbors. If this has not always culminated in accurate
and systematic research on his part,3 it has at least resulted in the
horrors may actuate the social scientists. But the social reformer, like the physician,
the engineer, and the scientific agriculturist, can improve the human lot only to the
extent that he utilizes the labour of those who pursue science for its own sake regard-
less of its practical application." Reason and Nature 349-50.
1 "Experimental Jurisprudence and the New Deal," 78 Congo Rec. 12412, 12413
(1934).
2 " ••• You see how the vague circumference of the notion of duty shrinks and at
the same time grows more precise when we wash it with cynical acid and expel
everything except the object of our study, the operations of the law." O. W. Holmes,
"The Path of the Law." in Collected Legal Papers 174 (1920). Some of the fervent
anti-realists would feel that "trivia" is very weak language, if cynical acid is needed.
For their purposes, legal realism, at its worse, is miasmal.
3 Frank has consistently qualified his use of psychological theory and has ex-
pressed grave doubts about the excessive use of psychological materials by other
writers. See his extremely critical book review of F. R. Bienenfeld's Rediscovery 01
Justice, 38 Calil. L. Rev. 351 (1950).
desire on the part of others to venture forth into unknown areas

outside of jurisprudence.
Although many writers in the field of American jurisprudence
have agreed with some of Frank's ideas, he has not attempted to
create a special school of thought or to entice slavish followers to
his point of view. But many men have followed him in his quest
for a more thorough understanding of the relationships between
law and the other areas of man's knowledge of himself. In this
sense, I feel that he is a figure of considerable importance and one
who deserves the serious attention of any student interested in
the legal development of our day.
Facts and values are both an integral part of the legal order,
and in an era of rapid social, political, and legal change which
this past century has witnessed, no student of jurisprudence can
afford to act as though the area of values did not exist. 1
The functional school of modern jurisprudence (and particular-
ly legal realism) has done much to liberate jurisprudence from the
mechanistic dogmas of the past century, but theories that have
themselves become dogmatic entrenchments for one idea or
another merely impede progress, for monism is not the road to
liberation from the sterile ideas of the past. To move forward,
jurisprudence must utilize the findings of many schools of legal
thinking as well as the contributions of other fields of thought.
Some kind of integration, short of complete eclecticism, is perhaps
the tentative answer. 2
The purpose of susequent chapters will be to critically examine
Jerome Frank's philosophy of law in the light of its contributions
to contemporary American jurisprudence and, in particular, to a
meaningful synthesis of law and other areas of knowledge.
1 See Roscoe Pound, "The Lawyer as a Social Engineer" in "Law and Medicine-
A Symposium," 3 J. Pub. L. 292 (1954); Morris R. Cohen, American Thought: A
Critical Sketch (Glencoe: The Free Press, 1954), esp. "The Realist School," at 169-176.
S See Jerome Hall, "Integrative Jurisprudence," in Interpretations ot Modern
Legal Philosophies 313-331 (Sayre ed. 1947); "Unification of Political and Legal
Theory," 69 Pol. Sci. Q. 15 (1954); and Studies in Jurisprudence and Criminal
Theory (N.Y.: Oceana Publications, 1958); "Integrating Law and Other Learned
Professions; A Symposium," 32 Va. L. Rev. 695 (1946). Ct., Frederick K. Beutel,
Some Potentialities ot Experimental Jurisprudence as a New Branch ot Social Science
(Lincoln: Univ. of Nebraska Press, 1957), especially pp. 3-56.
CHAPTER TWO
The Crusade Against the ((Myth"

of Legal Certainty
... Only a limited degree of legal certainty can
be attained. The current demand for exactness
and predictability in law is incapable of satis-
faction because a greater degree of legal finality
is sought than is procurable, desirable or neces-
sary. If it be true that greater legal certainty is
sought than is practically required or attainable,
then the demand for excessive legal stability
does not arise from practical needs. It must have
its roots not in reality but in a yearning for
something unreal. Which is to say that the wide-
spread notion that law either is or can be made
approximately stationary and certain is irration-
al and should be classed as an illusion or a myth.
JEROME FRANK 1
... It is a curious twentieth-century phenomenon

that so many intellectuals should be so actively
engaged in the task of persuading other intel-
lectuals by reason that men are essentially
irrational. ...
JOHN HALLOWELL 2
1 Law and the Modern Mind (N.Y.: Coward-McCann,

1930),pp.II-12.
2 John H. Hallowell, "Politics and Ethics," 38 Am.
Pol. Sci. Rev. 639, 651 (1944).
It might be said that American jurisprudence has never quite
recovered from the shock of the publication of Jerome Frank's
first book, Law and the Modern Mind, in 1930 and its five subse-
quent reprintings. For this book, more than any other in
modern American legal literature, thoroughly saturated the
philosophical horizons of the law with a psychological approach
that was hard to accept in one big gulp.
Every major idea that Frank has presented in his other books
and numerous articles has been a reflection, a correction, or an
extension of this first pioneer book. And most of the criticism of
Frank's writing, though intended for specific books or articles,
can be levelled at Law and the Modern Mind. For those realists
who had wanted to dabble with the psychological approach to the
law, but could never quite bring themselves to the brink of
Freudian psychology, this book was a minor masterpiece. For
others, it was a lesson in the exaggerated addiction to a single
idea, a distorted and unscientific hodge-podge of new (or what
looked like new) ideas, or even just a mere exercise in intellectual
eclecticism. But regardless of its effects on the reader, Frank's
first book marked him as an important pioneer in American
legal thought, a figure to be watched, whether admired or deplo-
red.
From the very beginning of his book, Frank was the crusading
legal realist, moving first to describe and then to explode what he
called the basic legal myth, the myth of legal rule certainty. At
the outset, Frank was set on making a frontal assault on this
myth:
Here we arrive at a curious problem: Why do men crave an undesirable

and indeed unrealizable permanence and fixity in law? Why in a modern
world does the ancient dream persist of a comprehensive and unchanging
body of law? Why do the generality of lawyers insist that law should
and can be clearly knowable and precisely predictable although, by doing
so, they justify a popular belief in an absurd standard of legal exactness?
Why do lawyers, indeed, themselves recognize such an absurd standard,
which makes their admirable and socially valuable achievement - keeping
the law supple and flexible - seem bungling and harmful? ... 1
Do lawyers deliberately and consciously deceive the public in

this fashion? Is this the reason why some people in our society
regard the lawyer as a crafty individual bent on hunting down
potential cases in which he can fleece the public? No, says Frank.
The reason lies in the basic legal myth:
Why these pretenses, why this professional hypocrisy? The answer is an
arresting one: There is no hypocrisy. The lawyers' pretenses are not
consciously deceptive. The lawyers themselves, like the layman, fail to
recognize fully the essentially plastic and mutable character of law.
Although it is the chiefest function of lawyers to make the legal rules
viable and pliable, a large part of the profession believes, and therefore
encourages the laity to believe, that these rules either are or can be made
essentially immutable .... 2
In an age of rapid social transformation, the lawyer is a useful

figure, but why does he persist in his desire, for Frank a contra-
dictory one, to find a fixed set of legal rules? This is the dilemma
that Frank attempts to explain.
Now the true art of the lawyer is the art of legal modification, an art
highly useful to the layman. For the layman's interests, although he
does not realize it, would be poorly served by an immobile system of
law. Especially is this so in the twentieth century. The emphasis of our
era is on change. The present trend in law is, accordingly, away from
static security - the preservation of old established rights - and towards
dynamic security - the preservation of men engaged in new enterprises.
Which means that the layman's ordinary practical needs would be
seriously thwarted by an inelastic legal arrangement. A body of undevi-
ating legal principles he would find unbearably procrustean. Yet para-
doxically he and his lawyers, when they express their notions of a desirable
legal system, usually state that they want the law to be everlastingly
settled. 3
1 Frank, op. cit. supra note 1, at 10.
a Id. at 9. Note the use of the word "consciously." What is meant by this termi-
nology? Later on in his discussion, this type of psychological language and expla-
nation almost becomes the raison d'etre of Frank's philosophy of law.
sId. at 10. (Emphasis added). Frank's application of this theory to the role of the
judge in the judicial process opened up a new vista of interesting and in many re-
spects provocative exploration, which I will discuss in chap. IV.
THE 'MYTH' OF LEGAL CERTAINTY 35
WHY DO MEN CRAVE LEGAL CERTAINTY?
One of the significant contributions of contemporary American

legal realism has been the discussion of the origins, purpose, and
efficacy of legal rules. Some writers have been extremely critical
of the worship of legal rules and of the feeling by the lay public
that rules can provide exactness and certainty in the law. Jerome
Frank has been the most noteworthy exponent of this view,
particularly in his pioneer book, Law and the Modem Mind.
Frank would be the last person to deny the existence and the
utility of legal rules. 1 Yet, his attack on those writers who see
only the legal rules and nothing else as law (especially the late
Professor Joseph H. Beale) has led some writers to believe that
Frank wanted a legal system that operated on a purely pragmatic
basis. Frank fervently denies this accusation and says that men
like Gray, Wigmore, and Judge Cuthbert Pound expressed simi-
lar doubts about the prediction-value of legal rules and prece-
dents.
On these points, as to uncertainty in the legal rules, the so-called "realists"
have but followed in the footsteps of their predecessors. The difference between
the "realists" and those other writers has been, in this respect, chiefly
one of emphasis and shading. And it is simply not true that most of the
"realists" (and the writer in particular), to any greater extent than many of
the "non-realists" above cited, have expressed or implied a belief that im-
precision in the legal rules is desirable. 2
The basis for Frank's attack on the "myth" of rule certainty

is his notion of Law as a Father-substitute, an application of a
theory that he borrowed from child psychologists such as Jean
Piaget. From the outset, Frank regarded this psychological expla-
nation as only a "partial explanation" of why men (lawyers,
judges, as well as the lay public) believe in legal rule certainty.
1 In answering Morris Cohen, who had criticized the legal skeptics (realists) for
what he called extreme "nominalism" because they denied the existence of legal
rules, Frank wrote: "The sceptics insist that legal rules exist and must be studied.
But they say that knowledge of the rules is but a small part of what lawyers and
judges use in their work and that a definition of law as rules does an injury to clear
thinking about law." Frank, "Are Judges Human?" 80 U. Pa. L. Rev. 17, 44-45
(1931).
2 Frank, If Men Were Angels (N.Y.: Harper and Brothers, 1942), p. 304. The
"non-realists" that Frank refers to are Cardozo, Dickinson, Fuller, M. R. Cohen,
and Pound.
In extending his explanation one step further, Frank says that

the ability to deceive ourselves about the nature of legal reality
is tied to our use of legal logic 1 and legal language. Word de-
ception is the indispensable tool of the rule-fetichists .
.. . Verbalism and word-magic; fatuous insistence on illusory certainty,
continuity and uniformity; wishful intellection which ignores, or tries to
obliterate from cognizance, unpleasant circumstances - these are the
marks of childish thought and often affect legal thinking.2
At this point, it should be said that Frank is clearly not
denying the existence of legal rules, or for that matter their effect
on contemporary legal thinking and action; what he is saying is
that the legal rules that we employ are not all there is to "law"
(as he conceives it) and the judicial process .
. . . Whoever studies that process unhampered by subjective com-
mitments which deflect accurate observation must note that, while rules
enter into the making of law, they are not the whole of it. That process of
judging (which is law) is not to be confined within the compass of mere
rules. The rules play only a subordinate role. 3
1 Frank's attack on legal logic created a furor among students of legal philosophy,
among them Mortimer J. Adler, who, like Morris Cohen and Lon Fuller, regards
Frank as an extreme nominalist. Adler wrote: "If Frank and others of his persuasion
had stopped to analyze the logical problem of certainty and probability in the law
instead of completely eschewing formal logic as a diseased thing because it is associ·
ated in their minds with the middle ages and scholasticism, there would be greater
clarification and less confusion of the issues between realistic jurisprudence and its
opponents." Adler, "Legal Certainty," in the symposium on Law and the Modern
M$nd, 31 Col. L. Rev. 82, 102 (1931). Frank criticized Adler and Morris Cohen for
their criticism of Holmes' logic and especially for what he called "their lack of actual
legal experience.. .. When these philosophers become practicing lawyers they will
understand what Holmes meant." Frank, "Are Judges Human?" 80 U. Pa. L. Rev.
17, 48 n. 73 (1931). Adler also felt that Frank had failed to distinguish what Adler
called "Law as official action" from "Law in discourse." In his later works, especially
Courts on Trial and the new preface to the 1949 edition of Law and the Modern Mind,
Frank recanted his attack on what he called "scholasticism" and devoted a chapter
of his last book to a discussion of natural law and the value of Thomistic thought.
See chap. XXVI in Courts on Trial, especially pp. 353-56, 360, 365-73 (1949).
However, Adler would still find the body of Frank's writing antithetical to his own
legal philosophy, even though the Notre Dame Lawyer has temporarily taken Frank
to its bosom. One might also add the comment that instead of engaging in squabbles
of this kind, Professor Adler is now engaged in more lucrative ventures.
a Frank, Law and the Modern Mind, 82.
a [d. at 274. Frank defines "law" in this fashion: "From the point of view of the
practical work of the lawyer, law may fairly be said to be past decisions (as to past
events which have been judged) and predictions as to future decisions. From the
point of view of the judge, the law may fairly be said to be the judging process or the
power to pass judgment." Ibid., note. From the point of view of legal semantics,
Frank has grave doubts about the use of the word, "law": "Of course, anyone can
define 'law' as he pleases. The word 'law' is ambiguous and it might be well if we
could abolish it. But until a substitute is invented, it seems not improper to apply
Rules can help us to predict future decisions. They can also
serve as guides to future action, but beyond that, their efficacy
is seriously doubted by Frank, who writes:
... A rule tells something about law, but is not law. For, to repeat, law
is what happened or what will happen in concrete cases. Past decisions
are experimental guides to prognostications of future decisions. And legal
rules are mental devices for assembling, in convenient form, information
about past cases to aid in making such prognostications. Or they may be
defined as generalized statements of how courts will decide questions, of
the considerations which will weigh with courts in the decision of cases
to which the rules are applicable. 1
As a lawyer, and later a federal judge, Jerome Frank has had

little patience for those who worship legal rules. He has gone so
far as to say that
... There are excellent grounds for the contention that "direct specific rules
of law" provoke more litigation than they prevent . ... 2
Another name for "legal absolutism" is what Frank calls
"Bealism" after the late Harvard professor of law, Joseph H.
Beale. 3 While Christopher Columbus Langdelliater received the
cutting edge of Frank's attack because he laid the "wrong"
foundations for modern American legal education, Beale became
the focal-point for Frank's attack on legal fundamentalism and
rule-fetichism.
"The Law," then, is extra-experiential. It is "the breath of God, the
harmony of the world," as Hooker put it; it is "invested with a halo,"
a "brooding omnipresence in the sky," to use Holmes' derisive phrase.
Such, in effect, are the views expressed by Beale. We may, for convenience,
refer to this attitude as legal Absolutism or "Bealism." 4
it to that which is central in the work of the practising lawyer. This book is p1'imarily
concerned with 'law' as it affects the W01'k of the p1'actising lawyer and the needs of the
clients who retain him." Id. at 47, note. Rather than define the troublesome word
"law" each time it was used, Frank would prefer to omit the word and clearly state
what he was talking about, i.e., what courts do, are expected to do, can do, and ought
to do. This is the method he followed in Courts on T1'ial.
lId. at 276.
2 "Are Judges Human?" 80 U. Pa. L. Rev. 233, 238 (1931).
3 " ••• The extreme position taken in Jerome Frank's early writings, denying
altogether the existence of rules in advance of decisions, seems to have been in reac-
tion to extremism of the more traditional kind which pretended that a rule always
did exist in advance. Mr. Frank's Law and the Modern Mind (1930) had Professor
Beale's conceptualism for its bete noi1'e." Stone, The P1'ovince and Function of Law,
745 n. 207 (1945).
4 Frank, Law and the Modern Mind, at 54--55. Frank added a note saying that
"Beale, it is fair to say, is not a consistent Bealist. But in his more didactic and philo-
sophic writings he expresses so pronounced an absolutist point of view that the term
Bealism is justifiable as a label." I d. at 55.
Beale was accused of possessing most of the previous "sins"

of the non-and anti-realists, viz., wishful thinking, Wousining or
Word-Magic, "verbomania," and finally, "scholasticism."
We can see now why there is so much talk about the certainty of law.
That talk is not descriptive of facts; it is made up of magical phrases.
Law being so largely lacking in the certainty which is desired, resort is
had to those twangings of the vocal cords which will yield compensatory
satisfaction. 1
Indeed, the word-magic that so deludes the legal fundamenta-

lists has a "narcotic" effect upon its listeners .
. . . It is not, then, the clouding of the critical faculties through the power
of words that betrays us lawyers; it is rather that, confronted by the law,
men tend to be baffled by feelings stimulated by the father-substitute
which law represents, and therefore use narcotizing and paralyzing words
to pursue what are relatively childish aims. 2
The answer that Frank gives to Bealism and its disciples is as

simple and direct as his solution to the basic legal myth: " ... The
law of any case is what the judge decides." 3
1 [d. at 63. Morris Cohen, Mortimer Adler, Lon Fuller and other writers feel that
Frank could be accused of the same amount of "twanging." The only trouble is that
Frank's verbalizations come under the category of "legal realism" and are therefore
"true," whereas the "scholastics" merely play with words. If ever there was a word-
magician, it is Jerome Frank. And if one is searching for logomachy, anything that
Frank has written, especially Law and the Modern Mind, will serve as a fine field of
battle (of words). This is not the place for systematic criticism of Frank's ideas,
but let it be said at this point that Frank is guilty of most of the sins of his attackers.
For a beautiful discussion of the language of law and the language of poetry, see
Archibald MacLeish, "Law Study and General Education," in Harold J. Berman,
On the Teaching 01 Law in the Libual Arts Curriculum (Brooklyn: The Foundation
Press, Inc., 1956), at 18-20.
sId. at 91. See Frank, "A Lawyer Looks at Language," in S.1. Hayakawa's
Languagein Action (N.Y.: Harcourt, Brace, 1941 ed.), pp. 322-36; "Word-Conscious-
ness," chap. X in Law and the Modern Mind 84-92; "The 'Realists' and Language,"
app. V, pt. 13, in II Men Whue Angels 312-14; Courts on Trial 349-50; "What
Courts Do In Fact," 26 IU. L. Rev. 761, 778-80 (1932). Also, chap. VII, "The Exten-
sion and Intension of Terms," in Clarence Morris, How Lawyus Think (Cambridge:
Harvard Univ. Press, 1937), pp. 95-106; for a lengthy discussion of the problems of
legal language, see Charles B. Daly, Genual Semantics and the Rule 01 Stare Decisis
as Regards the Supreme Court 01 the United States Since I937 (Unpublished Doctoral
dissertation, New York University, 1953), my article, "Language and the 'Law':
Jurisprudence and Some First Principles of General Semantics." 62 Dick. L. Rev.
227 (1958); and Walter Probert, Law and Genual Semantics (Unpublished doctoral
dissertation submitted for the J.S.D., Yale University, 1957). Both the Daly and
Probert theses are available on microfilm.
a Law and the Modern Mind 126.
LEGAL CERTAINTY:
FRANK'S "WASTELAND" OF MODERN LAW
Along with Roscoe Pound and Joseph Beale, Frank has centered
a large share of his criticism on Professor John Dickinson for his
addiction to "rule-fetichism." 1
To follow Beale and those who believe in the theory that legal
rules are the law would lead us into the wasteland in which much
of current legal thinking still remains. Hence, Jerome Frank,
being a bona fide legal realist, must reaffirm Justice Holmes .
. . . Rules, whether stated by judges or others, whether jn statutes,
opinions or text-books by learned authors, are not the Law, but are
only some among many of the sources to which judges go in making the
law of the cases tried before them ....
The law, therefore, consists of decisions, not of rules. If so, then whenever
a judge decides a case he is making law .. .. 2
The desire for legal codification, like the urge for fixed legal
rules, ended up in the same blind alley of illusion. Although codi-
fication had a good purpose, Frank says that it was doomed to the
same sterile wish-fulfillment of legal fundamentalism.
Again the hope of attaining a large measure of legal certainty by codifi-
cation proved vain. It produced not certainty, but sterile logic-chopping.
1 " ••• Dickinson represents the older tradition in its most sophisticated and
seductive form .... " Id. at 264. See app. II, "Notes on Rule-Fetichism and Realism,"
in this book, at 264-84, where Frank discusses Dickinson and Dean Leon Green.
Frank is not alone in this criticism of Dickinson. Cf.: "On a realistic view, law con-
sists of decisions in the past and predictions of decisions in the future. The decisions
have authority for the parties to the cases in which they were rendered, and the pre-
dictions have a lesser authority for possible parties to future cases, whose actions
may be governed by them. But rules themselves cannot be authoritative, for as Mr.
Justice Holmes remarked, 'general propositions do not decide concrete cases';
judges decide and judges can always choose among competing rules. Moreover, rule-
making is not a prerogative of judges; administrators and textbook writers can make
them too, and sometimes better ones than judges. The ideal of generality in law,
which Dickinson stresses, is in fact a will-of-the-wisp. He connects it with the quest
for certainty and predictability, but in common observation the outcome of a lawsuit
is among the most uncertain of human events. Jerome Frank has taken Dickinson
specifically to task for his definition of law in terms of rules.. .. In the writer's
opinion Frank's criticisms are unanswerable.... " Harvey C. Mansfield, "An Ap-
praisal of John Dickinson's Administrative Justice and the Supremacy of Law" (N.Y.:
Committee on Appraisal of Research, Social Science Research Council, 1940), p. 73.
a Frank, Law and the Modern Mind 127, 128. By "decisions," Frank also means
predictions as to future decisions. Note at 128.
... Belief in a man-made code, which shall be exhaustive and final, is

essentially the same dream in another form, but a form which hides from
superficial study the nature of the dream. But a dream it is, nevertheless.
For only a dream-code can anticipate all possible legal disputes and regu
late them in advance. 1
The urge for legal finality and exactitude cannot be found in

codification of the law, any more than it could be found in legal
rules, for after all, what is a legal code, if not merely an elabo-
ration of these legal rules? 2
In all of these attacks by Jerome Frank, the essential element
under scrutiny has been the urge to find legal certainty and
hence security and stability. Not only does Frank think that this
is humanly impossible, but it is highly doubtful if a changing
legal order could allow for such a paradox: change and fixity.
Yet, every society must have some fixity and some flexibility by
its very definition. 3
In addition, Frank argues that legal certitude is loathesome
because it takes away from life that which he calls "if-y' , and
"chancy." Without the element of contingency, would men want
to struggle to improve their lot? The will to believe, and the will
to believe with certainty have been written in the records of human
history, and Frank would not deny this fact. But should men
continue to think and behave in this manner? Since most of this
1 Id. at 188, 189.
2 "The childish belief in legal finality is not to be realized by codification. It is
and will ever be based upon illusion." Id. at 193. Ct., Layman E. Allen, "Symbolic
Logic: A Razor-Edged Tool For Drafting and Interpreting Legal Documeuts,"
66 Yale L.J. 833, 877-78 (1957).
3 " ••• Our common phrase 'law and order' inverts the true order of priority, both
historically and logically. Law never creates order; the most it can do is to help to
sustain order when that has once been firmly established, for it sometimes acquires a
prestige of its own which enables it to foster an atmosphere favourable to the con-
tinuance of orderly social relations when these are called upon to stand a strain. But
always there has to be order before law can ever begin to take root and grow. When
the circumstances are propitious, law is the sequel, but it is never the instrument, of
the establishment of order." J. L. Brierly, The Outlook For International Law (Oxford:
Clarendon Press, 1944), p. 74. If we accept Brierly's assertion that law comes after
social order has been established, then we can also assume that this stability must be
maintained at least minimally by some kind of system of rules, which is where law
(or taboo or mores or some other set of standards) enters the picture. If social soli-
darity and stability are the prerequisites of law, then certaiuly the purpose of law
would not be the creation of chaos, but the preservation of social order. Hence,
some degree of fixity is assumed in this definition of the role of law. Ct. "To secure a
good society, whether it is good because it is characterized by an abstractly derived
justice or by an ideal taken from experience, cannot be the purpose of law for the
simple reason that it is the purpose of the entire mechanism of political and social
organization.... " Radin, Law as Logic and Experience 145 (1940).
uncertainty is "of immense social value," 1 Frank would answer

with an emphatic "no."
Another explanation that Frank uses for understanding the
basic legal myth of rule certainty is the religious one. Religion
gives men security because of its universalistic elements. The
immutability of natural law gave the medieval world a kind of
security it has never recaptured since the Reformation. Some
writers argue, e.g., the historian Arnold Toynbee and the psycho-
analyst Erich Fromm, that men still crave a return to that kind of
security .
. . . On this basis it is arguable that in law, as everywhere else, this re-
ligious impulse is operative; it drives men to postulate a legal system
touched with the divine spirit and therefore free of the indefinite, the
arbitrary and the capricious. 2
However, Frank does not believe that modern law is inherently

a substitute for the function that religion once had in the lives of
men. Religion lost its potency, serenity, and all-encompassing
control over men when science destroyed the barrier between
religion and philosophy and slowly began to supplant the former.
The secular father-images took root and have yet to be routed
from their pre-eminent position in the modern world .
. . . Finally, as in our times, the longing for a father-who-lays-down-the
law (for the Father-as-Judge) can "short-circuit" the Heavenly Father.
No longer, mediately as a derivative of religion, but now immediately, the
Law is looked to as a substitute for the infallible Father-Judge of child-
hood. The law is "paternalized," not "divinified." 3
Thus, it is not the religious, universalistic element in law that

enables lawyers and judges as well as legal publicists to dupe the
innocent public. It is the basic legal myth, its perpetuation,
conciouslyor otherwise, and the pitiful state of what Frank calls
"the value of lay ignorance" that enables the myth of legal rule
certainty to flourish and grow.
If this is the case, and many writers on law doubt the validity
of Frank's arguments, how does Frank propose to eliminate, or at
least to alleviate, this deplorable state of affairs? Again, ac-
cording to the gospel of Jerome Frank, the answer is a simple one,
1 Frank, Law and the Modern Mind 7.
8 ld. at 197.
a ld. at 203.
if you can follow his argument: judicial self-limitation and self-

awareness .
.. . The judge is trying to decide what is just; his judgment is a "value
judgment" and most value judgments rest upon obscure antecedents.
We cannot, if we would, get rid of emotions in the field of justice. The
best we cau hope for is that the emotions of the judge will become more
sensitive, more nicely balanced, more subject to his own scrutiny, more
capable of detailed articulation. l
This would seem a simple thing for intelligent judges to do,
but not all judges are equally qualified to practice self-limitation
of their own actions. Judges must not only understand themselves
(which is hard enough for most laymen, except perhaps those who
have undergone psychoanalysis), but also human nature in general.
But the sytematic, deliberate and openly disclosed use of the unique facts
of a case will not be of much service until the judges develop the notion of
law as a portion of the science of human nature. And that development
cannot come to fruition until the judges come to grips with the human
nature operative in themselves .... What this implies is that the judge
should be not a mere thinking-machine but well trained, not only in rules
of law, but also in the best available methods of psychology. And among
the most important objects which would be subject to his scrutiny as a
psychologist would be his own personality so that he might become keenly
aware of his own prejudices, biases, antipathies, and the like, not only
in connection with attitudes political, economic, and moral but with
respect to more minute and less easily discoverable preferences and dis-
inclinations. 2
THE ROAD TO LIBERATION
The heart of the matter is man's unavoidable ignorance. If we

could realize the folly of certainty-seeking, then perhaps we might
be able to face legal reality with the new knowledge that only
self-awareness can free use from the search for final truth. Once
we admit our childish thinking and infantile illusions, they will
not vanish automatically, but we will have made the start that
can eventually lead us to facts. Law in action is the realist credo,
and their only credo .
. . . That is the paradox of wisdom: In so far as we become mindful that
life is more dangerous than we had naively supposed in childhood, we
lId. at 143. C/., Maurice Finkelstein, "Judicial Self-Limitation," 37 Haf'lI. L.
Rell. 338 (1924), "Further Notes on Judicial Self-Limitation," 39 Haf'll. L. Rell.
221 (1925).
8 Law and the Modern Mind 147 and note at bottom of the page.
help ourselves to approach nearer to actual security .... By abandoning
an infantile hope of absolute legal certainty we may augment markedly
the amount of actual legal certainty.1
Once we can rid ourselves of the need for father-authority, we

will have made the first step in the direction of legal realism, for
there is no room for illusion in the realist's creed. Throw off the
shackles of father-authority, and the facts will be clear in them-
selves. Learn to search for probabilities, not eternal truths. And,
as the great Justice Holmes said, and the legal realists after him
have reiterated: "To have doubted one's first principles is the
mark of a civilized man." For, as Frank writes:
Increasing constructive doubt is the sign of advancing civilization. We
must put question marks alongside many of our inherited legal dogmas,
since they are dangerously out of line with social facts. 2
To Jerome Frank, this struggle is not exclusively in the domain

of jurisprudence: it is the battle of modern science, the search for
empirical truth amidst dogma, the age-old struggle to free men's
minds from the shackles of past emotion and sentimentality;
but above all, it is a liberation from authority. This freedom to
doubt, to search for the facts, to question preconceived dogma,
is the touchstone of Jerome Frank's legal realism and his search
for a new approach to legal history and legal action .
. . . Humanity increases its chances of survival and of progress to the
extent that it becomes able to question - neither blindly to accept nor
violently to defy - the father's guesses, and to discontinue calling them
self-evident truths .... 3
The most that we can find will not always be satisfying,
namely, probabilities; but we must be content with the inherent
limitations of human reason. 4 If we constantly probe further, we
1 Id. at 159.
2 Id. at 245.
3 I d. at 248. To the degree that Frank's description of the scientific method and
its function is accurate, I would agree with his assessment. But the line between the
method as such and its possible uses is not always clear in Frank's mind, just as the
line between New Deal "experimentalist" lawyers and New Deal social reformers
was not clearly distinguished in one of his speeches reprinted under the title, "Ex-
perimental jurisprudence and the New Deal," 78 Congo Rec. 12412 (1934).
4 "Most men, most of the time, crave certainty. It is none too easy, therefore, for
stUdents of politics and economics, or the rest of us, to acknowledge that, as those
subjects are but applied anthropology and never can be exact sciences, the amount
of certainty they can yield must always be limited. But if we adhere to the scientific
spirit, which means unflinching honesty, we must thus acknowledge the inherent
limitations of our attainable knowledge. Such knowledge has this paradoxical recom-
can increase the realm of our knowledge about the legal order un-
til we reach the point where some temporary generalizations can
be made .
.. . We must be content with modest probabilities, as Dewey puts it,

and not foolishly pretend that our legal abstractions are mathematically
accurate, for that pretense obstructs the will to modify and adjust these
abstractions in the light of careful observation of their working results. l
Although Jerome Frank clearly distinguishes his efforts to

describe the legal rule myth from his desire for the eradication (or
at least amelioration) of the bad traces of this myth, many of his
critics are still not certain that this distinction is a clear one,
especially Morris Cohen, Kennedy, and Dickinson.
Frank feels that once men are freed of childish notions about
legal certainty, they will be free to find the kind of legal axioms
that will best serve them. 2 This, he continues, does not lead to
anarchy (or, for that matter, nihilism) in the law, but on the
contrary, to an intelligent, balanced attitude toward constructive
legal change.
According to Frank's analysis, there will be so-called "tempo-
rary absolutes" open to change and further discussion. But this
need not be a legal system without rules. The only things missing
in Frank's analysis are the inherent fixity and immutability of
legal rules. The anarchic reign of legal rule certainty will have
ended, and the process of constant reappraisal of our basic as-
pense; although the acceptance of ineradicable uncertainties discloses life as more

precarious than we may like it to be, nevertheless courageous facing of that fact
enables us to approach nearer to actual security. For by conceding that we do not
and cannot fully comprehend and control our environment, we grow more alert in
detecting detectable dangers, less likely to become the victims of those hazards which
are foreseeable, the better able to reduce avoidable uncertainties and to augment the
amount of achievable certainty." Frank, "The Scientific Spirit and Economic Dog-
matism," in Jerome Nathanson (ed.), Science For Democ1'acy, Papers from the Con-
ferences on the Scientific Spirit and Democratic Faith (N.Y.: King's Crown Press,
1946), p. 21. This is one of the best statements of Jerome Frank's philosophy of life.
I Law and the Modern Mind 247. I am reminded of another favorite statement of
O. W. Holmes: "General propositions do not decide concrete cases." Dissenting
opinion in Lochner v. N. Y., 198 U.S. 45, 76 (1905). Frank assents.
I "The most important fact about matters legal is that they exist or can exist.
Consequently, legal axioms or postulates must relate 10 the (present or potentially)
uistent. The legal thinker should never let himself believe that he is dealing with pure
mathematics. Logical deductions from legal postulates must square with observable phe-
nomena - else the postulates are wrong." Frank, "Mr. Justice Holmes and Non-Eucli-
dean Legal Thinking," 17 Cornell L.Q. 568,578 (1932).
sumptions begun. "If such sentiments disclose a delight in legal
uncertainty, then the writer is a one-eyed Eskimo." 1
Roscoe Pound feels that the assault on legal rules has led to some
deleterious consequences, even if not intended by the legal
realists. The search for flexibility and pragmatic or free judicial
decisions has resulted in what some writers call "executive
justice." For Pound, the problem is one of balance:
Three persistent problems recurring in different forms in all stages of
legal development may well be termed fundamental in jurisprudence:
the problem of rule and discretion; the problem of the valuing of interests;
and the limits of effective legal action. Analytical jurists have assumed an
antithesis between law and administration, holding that justice according
to law is necessarily judicial justice according to formula ("a government
of laws and not of men"). The doctrine of separation of powers, in which
the judicial power is carefully segregated from the executive and the
legislative, was taken over from political theorists and became a cardinal
tenet in the juristic faith of the nineteenth century. The trend today is to
recognize that reliance must be placed both upon men and upon rules in
any effective fulfillment of the ends of law. The problem is not rigidly to
exclude the one or the other but to effect a proper adjustment between
judicial justice and administrative justice, and between a judicial justice
held down to an application of authoritative legal precepts by an authori-
tative technique and a necessary measure of individualization to be a-
chieved only by free judicial action. Experience seems to show that in
large part rule must be assigned to one portion of the domain of the legal
order and discretion to another .... 2
Pound does not assume that the desire for executive justice is
the direct result of the work of the legal realists. Yet, the real-
ists' well-meaning assault on many of the myths of contemporary
American jurisprudence (especially that of legal rule certainty)
might have opened the way, intellectually at least, to a worship
of uncertainty and instability for its own sake. While most of the
legal realists, including Frank, have suggested positive reforms
of the legal system, and in all sincerity have criticized their
predecessors of the analytical school for failing to see legal reali-
ties, they are nonetheless responsible for many of the exaggerated
attacks on the non- and anti-realists who felt that without legal
rules there could be no viable legal order.
1 Frank, If Men Were Angels 307. This statement requires no further comment.
2 "Jurisprudence," 8 Encyc. Soc. Sci. 477, 488-89 (1935). Pound also says that
nineteenth century jurisprudence considered three questions: the nature of law;
the relations of law and morals; and the interpretation of legal history. An answer
to the first question presupposed an answer to the second question. Cf., Mc Whinney,
infra p. 49.
THE CONSEQUENCES OF FRANK'S ATTACK
The consequences of a man's thinking, whether intended or not, are

certainly, in this writer's opinion, as important as the ideas them-
selves. 1 "Ideas are weapons," wrote the political historian Max
Lerner, and he was not the first writer to recognize this truism of
intellectual history.
Jerome Frank has been a provocateur in American juris-
prudence. This, in itself, is a contribution of note, but debunking
by itself cannot upset the work of Pound, Cardozo, and Morris
Cohen, or the wisdom of many other legal minds down through
the ages.
The debunking of a Mencken or a Steffens had its social and
even intellectual value, but in an age of science, Frank must find
more precise tools of analysis if he expects to make jurisprudence
a more exact "art," as he puts it. 2 Even if we accept his assertion
that jurisprudence is an art and not a science, the instruments
that are used in the study of legal phenomena must be exact and
time-tested. 3
It is perhaps characteristic of intellectual pioneers that they
1 "Intellectual humility on the part of those who seek the truth is not only a
grace but a necessity; and it is well that legal scholars in this country should show
a willingness to learn from all possible sources. But it is also necessary to be on guard
against the easy assumption that any proposition becomes true when someone labels
it natural science. Science should surely not be another name for Credulity." Morris
R. Cohen, Book Review of Robinson's Law and the Lawyers, 22 CorneU L.Q. 171,
177-78 (1936).
2 " ••• The torch that Holmes had lit was being carried by the younger school of
'realists' in jurisprudence - the names of Jerome Frank, Leon Green, and Karl
Llewellyn come first to mind - and its flame was used at times rather in the spirit of
Mohammedan conquest than of Olympian inquiry.... " Harvey C. Mansfield, op.
cit. supra p. 39, at 12.
8 " ••• Certainty is an ideal that law must never cease to aim at, but it is also one
that it can never realize at all completely; for the main cause of uncertainty in any
kind of law is the uncertainty of the facts to which it has to be applied. Law has
necessarily to be stated in the form ot general principles, but facts are never general;
they are always particular, they are often obscure or disputed, and they were very
likely not foreseen, and therefore not expressly provided for, at the time when the
rule of law received its formulation. It is this intractability of facts that prevents the
practice of law from ever becoming a science; it is and always will be an art." Brierly,
op. cil. supra p. 40, at 16. Of course, the fact that exact instruments for studying
and measuring the "hidden" elements of legal behavior are lacking does not mean that
these factors in the judicial process are non-existent. It does, however, mean that the
observer has a greater responsibility in becoming aware of these deficiencies in his
methodology and his tools of analysis.
chip away too much in their zeal, haste and excitement for
change. Yet, even though the work of Beard and Veblen, J.
Allen Smith, Parrington and Bentley was somewhat "shocking"
to the people of the early twentieth century and still remains so
for some contemporary minds, these men tried carefully to refine
and redefine their work in the light of new materials. This is the
mark of an educated man, of Emerson's "Man Thinking," and of
the liberal imagination that was so well-represented in modern
jurisprudence by the work of the late Benjamin Cardozo and
Morris Cohen.
Yet, Jerome Frank's ideas, alongside those of other legal real-
ists, have made their mark on modern legal thinking. They have
stimulated and exacerbated, debunked and enlightened. But the
results have at times been on the negative side of the ledger. For
when a school of jurisprudence makes an assault on what it con-
siders to be the bad results of legal rule certainty, the attack
against stability (if the legal rules really create stability) some-
times becomes an end in itself. And in an age of mass communi-
cation and mass distortion, it need not be reiterated that the good
effects of an idea can be outdone by its bad, even if unintended,
effects.
The final assessment of American legal realism is far from
completed, but when that appraisal is made by future students of
American legal philosophy, the admonitions of M. Cohen, Car-
dozo, Fuller, Pound, Rheinstein and others will not escape
examination. For the man of ideas ultimately bears responsibility
for what he has said and written, even though his presence has
long since passed. Although this is not always fair to the in-
tentions of the writer, it is still the case.
Jerome Frank, like Karl Marx and other prolific writers, will
bear the brunt of much future haggling over what he meant at the
time he wrote his major works. 1 And, like Marx, his ideas will
1 Here is an example of the conglomeration of ideas that Frank mixes into his
basic assumptions about the legal order and which usually end with a statement that
does damage to his intellectual ability: "Perhaps there is no greater obstacle to
effective governmental activity than the prevalent notion that the 'law,' at any given
period of time, is moderately well known or knowable. That notion reeks with
fallacies. And the prime fallacy is the belief that we know what we are talking about
when we use the word 'law.' I venture to say that there are not less than a dozen
definitions of that word, each of which is irrefutably correct. The truth is that there
are at least a dozen more or less distinct subject matters which by usage may be
designated correctly as 'law.' A label which can be used to mean so many different
have to bear the test of historical judgment. But today, in an era

that has witnessed almost cataclysmic political, social and scien-
tific changes, this writer is wont to believe that an attack on legal
certainty and an urge for flexibility in the legal order does not
always lead to the desired results. And yet Frank's devastating
attack on the legal certainty myth, the "cult of the robe," and
other sacred cows in the mansion of the law, were all necessary
if his war of liberation was to be successful.
In a recent assessment of Frank's contributions to American law,
Thurman Arnold wrote that-
Certainly the ideal of an adult personality has a therapeutic function
where men's mystical faith in sacred cows is leading them astray. But the
conception is so utterly materialistic, that it will not serve as a permanent
basis on which to rest the authority of the courts .... Realistic juris-
prudence is a good medicine for a sick and troubled society. The America
of the early 1930's was such a society. But realism, despite its liberating
virtues, is not a sustaining food for a stable civilization. l
Frank's attack on the icons of nineteenth century mechanistic
jurisprudence, on the authoritarianism of the judges, and the
slavish reliance, in the judicial as well as public mind, on the myth
of complete certainty, were fundamentally grounded in a deep
faith in democracy and the liberating powers of human reason .
. . . The authoritarian conception of "Law" in 1930 was indeed a great
moral force but headed in the wrong direction. The old conceptions of the
citizen's relationship to his government were out of step with the develop-
ment of the revolutionary new economy of the 20th century. Jerome
Frank was trying to free the law from its frustrating obsessions. His juris-
prudence was the jurisprudence of therapy. The law was in desperate
need of shock treatment. In this respect Law and the Modern Mind,
Frank's first book, was a tremendously effective work. More than any
other it cleared the way for a new set of conceptions and ideals with res-
pect to the relationship of the citizen to his government. 2
Professor Edward McWhinney adopts a similar position with
respect to Law and the Modern Mind, but he makes the important
point that Frank tempered his earlier views as a result of his work
with the Securities and Exchange Commission and his nearly
sixteen years on the federal bench.
things is of little use; worse, it can be dangerous because its ambiguity creates and
yet conceals stubbornly dogmatic but erroneous thinking, which often leads to social-
ly dangerous conduct." Frank, "Realistic Reflections on Law as a Constructive Social
Force," in Pf'oeeedings 0/ the National Con/Menee 0/ Social WDf'k, Detroit, 1933 (Chi-
cago: Univ. of Chicago Press, 1933), p. 326.
1 Arnold, "Judge Jerome Frank," 24 U. Chi. L. Rev. 633, 634-35 (1957).
2 Id. at 635.
If ... it be a correct interpretation of Jerome Frank that he was a free-
law-finder in his early writings, when his major intellectual contribution
was as an apostle of revolt against the existing legal order, this was clearly
no longer true in his later period, especially after he had ascended the
bench. One might venture to suggest that the change in Jerome Frank's
legal attitudes represented, in part, a response to his applied experience
as a judicial decision-maker, bringing with it a recognition of the ad-
vantages of continuity and certainty in law - the normal end-results of
the traditional, "logic-based" approach to decision-making. I prefer to
believe, however, (and I think that this interpretation harmonizes more
nearly with the eclectic humanism of Jerome Frank's personal philosophy)
that he could never be an absolutist in matters of technique, and that if
he campaigned, for example, for abandonment of stare decisis in his early
period it was largely as a tactical device to correct the rigidities of the
then current orthodoxies of juristic thinking in America. l
Any revolutionary effort, whether political or intellectual, is
bound to result in some damage to sacred beliefs and institutions.
Perhaps Frank's resolute attack on the myth of legal certainty
should be viewed in the light of his whole achievement, and not
merely the shocking effects of Law and the Modern Mind. That
he did not develop a definitive philosophy of law is not a fair
criticism, because the American legal realists were generally averse
to any official creed or doctrine of law, and were not even happy
with the label "school." Frank's efforts can be likened to the
story told about the late philosopher, Morris R. Cohen. He was
once reproached by one of his students at the City College of
New York for what the student regarded as destructive criticism
and his apparent failure to suggest antidotes. Professor Cohen
replied:
You have heard the story of how Hercules cleaned the Augean stables.
He took all the dirt and manure out and left them clean. You ask me:
'What did he leave in their stead?' I answer 'Isn't it enough to have
cleaned the stables?' 2
1 McWhinney, "The Great Debate: Activism and Self-Restraint and Current

Dilemmas in Judicial Policy-Making," 33 N.Y.U.L. Rev. 775, 781 (1958).
2 As told in Milton R. Konvitz, "Morris Raphael Cohen," 7 Antioch Review 487,
489 (1947). See Jerome Hall's assessment of American legal realism in his Studies in
Jurisprudence and Criminal Theory (N.Y.: Oceana Publications, 1958), pp. 29-31,
120-21, 136-38.
CHAPTER THREE
Psychology as the New

Weapon of Attack
Lawyers and judges must constantly act as psy-
chologists or psychiatrists. The lawyer in his
office often serves as an amateur psychiatrist to
his clients. Our legal vocabulary shows that
courts cope daily with such psychological
matters, as, for instance, "motive," "intention,"
"malice," "mental cruelty," "delusions" and
"undue influence."
JEROME FRANK 1
1 "Judicial Fact-Finding and Psychology," 14 Ohio

St. L. ]. 183 (1935).
American jurisprudence in the twentieth century has felt the
impact of many new approaches to the study of leg3.I institutions
and behavior. The positivistic "revolution" in American juris-
prudence has been a motley brew, consisting of such varied
ingredients as the legal positivism of Justice Holmes, the socio-
logical jurisprudence of Dean Pound, and the legal realism of
Judge Frank - together with all of the varied effects of pragma-
tism, functionalism, instrumentalism, experimentalism, and the
use of materials from the fields of economics, anthropology,
sociology, psychology, and the social sciences generally.
For Jerome Frank, the vital question was why lawyers, judges,
and the general public believe in (and rely on) the myth of
certainty and exactness in the legal rules? The answer to this di-
lemma is relatively simple, if we can accept Frank's major thesis,
viz., our childish ways of thinking as evidenced in the craving (or
what the psychoanalysts would call "wish-fulfillment") for a
fixed, stable and immutable set of mechanical legal rules. From
the works of child psychologists, especially Jean Piaget, Frank
fashioned an elaborate description of this process of childish
illusion and its counterpart in man's desire for legal certainty.
But although this explanation sounds simple, and may be
unique insofar as modern American jurisprudence is concerned,
the logic of his argument left much to be desired. But let us first
examine the elements of this psychological explanation in Frank's
own words.
We are on the trail of a stubborn illusion. Where better, then, to look for
clues than in the direction of childhood? For in children's problems, and
in children's modes of meeting their problems, are to be found the sources

of most of the confirmed illusions of later years. 1
But why should we look to childhood? Why not examine our
prenatal existence? In my opinion, most of Frank's assertions
about the childhood basis of adult illusion are not easily defended.
Only if you accept the basic tenets of Freudian psychology can
sush assertions be even superficially acceptable. Why does Frank
emphasize childhood? 2 Why not carefully examine our social
institutions? Or our social mores? Or even our national liter-
ature? For Jerome Frank, the answer is again quite simple:
because modern psychologists like Jean Piaget 3 have shown us
1 Law and the Modern Mind 13. Most writers on law would not accept the last
statement as proved truth without more evidence and less reliance on psychological
dogma. Cf. the following statement by a non-legal writer: "Jerome Frank, in Law
and the Modern Mind (Tudor, 1936), has argued that those who seek to repudiate all
authorities are often unable to do so. There is a sense of security which an unquestion-
ing dependence upon authority brings with it, and a heightening of certain satis-
factions. So in the absence of trustworthy human authorities, fictitious authorities
are invented, taking the form of abstract principles, half-anthropomorphically
conceived. By this means Frank endeavors to explain the 'basic legal myth' of a
system of law that exists beyond the law of the statutes, which legislators are ex-
pected to 'discover,' rather than 'create.' He might have extended his theory to
account for all conceptions of objective values. Although Frank's theory is of a
speculative nature that must inevitably be controversial, it is of great interest, and
well supported by knowledge of legal practice and legal theory." Charles L. Steven-
son, Ethics and Language (New Haven: Yale Univ. Press, 1944), p. 92 n. 8.
a Cf.: "The psychological function of law for the child is well analyzed in Jerome
Frank, Law and the Modern Mind ..• , pp. 13-21. Frank deviates from the above
analysis in that he concludes that the law is a substitute for the father, whereas it is
maintained here that law becomes not a symbolic person but the prohibitions of a
symbolic person. As the child progresses through school grades, he becomes ac-
quainted with the Constitution and its framers. Here, the part of the founding
fathers is clear - they made the law. In their position as defenders of the Constitution,
the Supreme Court justices have received analagous roles, roles made more complete
by their age qualifications and their specific sphere of the highest law of the land.•.. "
Sebastian de Grazia, The Political Community: A Study of Anomie (Chicago: Univ.
of Chicago Press, 1948), pp. 203-04 n. 15.
I The major books by Jean Piaget that Frank uses the most frequently are: The
Language and Thoughts of the ChUtl (N.Y.: Harcourt, Brace, 1926) Judgment and
Reasoning in the Chud (N.Y.: Harcourt, Brace, 1928); The ChUtl's Conception of
Causality (N.Y.: Harcourt, Brace, 1930). Other books in the field of psychology
that Frank refers to include Bernard Hart's Psychopathology: Its Development and
Its Place in Medicine (N.Y.: Macmillan, 1927); and The Psychology of Insanity
(N.Y.: Macmillan, 1931); Eugenio Rignano's The Psychology of Reasoning (N.Y.:
Harcourt, Brace, 1923); and William L. Northridge, Modern Theories of the U,...
conscious (London: K. Paul, Trench, and Trubner, 1924). " ... The 'child' as de-
scribed by Piaget, is not a constant. Nor are all children identical; there are develop-
mental periods in the growth of children; for convenience, I have not here differenti-
ated the periods." Frank, Courts on Trial; Myth and Reality in A_ican ]tlSlice
(Princeton: Princeton Univ. Press, 1949), p. 72 n. 15. Even before Piaget and Freud,
the courts were aware of the effects of "unconscious" factors on witnesses. See Frank's
opinion in UnWtl States e% rei. Accardi II. Shaughnessy, 219 F. 2d 77, 81 (2ndCir. 1955).
PSYCHOLOGY AS THE NEW WEAPON OF ATTACK 55
that this is where illusion begins, and if this is the case, then this is
the place to start hunting down Frank's so-called basic legal
myth, the illusion of exactitude and certitude in the law.
This psychological explanation is, in this writer's opinion, the
ignoratio elenchi of Jerome Frank's philosophy of law. (The fallacy
of Frank's argument about the origins of the so-called basic legal
myth lies in the fact that he proves his point by resorting to the
childish illusion argument, which in turn served as proof of
childish behavior-patterns, which, so far as modem jurisprudence
is concerned, is not the point at issue. In short, the argument is
circular.)
... And so, in the childish appraisal of the parents, the mother tends to
become the embodiment of all that is protectively tender while the father
personifies all that is certain, secure, infallible, and embodies exact law-
making, law-pronouncing and law-enforcing. The child, in his struggle for
existence, makes vital use of his belief in an omniscient and omnipotent
father, a father who lays down infallible and precise rules of conduct. 1
The child's use of his father is pre-eminent in Frank's theory
of legal illusion, for sooner or later the child will have to shake
off the bonds of father-authority, and then the search for a father-
substitute begins .
. .. But the demand for fatherly authority does not die. To be sure, as the
child grows into manhood, this demand grows less and less vocal, more
and more unconscious. The father-substitutes become less definite in form,
more vague and impersonal. But the relation to the father has become a
paradigm, a prototype of later relations. Concealed and submerged, there
persists a longing to reproduce the father-child pattern, to escape uncer-
tainty and confusion through the rediscovery of a father. 2
And, it follows from this argument that the father-substitute the

child later adopts is the Law.
. .. To the child the father is the Infallible Judge, the Maker of definite
rules of conduct. He knows precisely what is right and what is wrong and,
as head of the family, sits in judgment and punishes misdeeds. The Law-
a body of rules apparently devised for infallibly determining what is right
and what is wrong and for deciding who should be punished for misdeeds-
inevitably becomes a partial substitute for the Father-as-Infallible-Judge.
That is, the desire persists in grown men to recapture, through a redis-
covery of a father, a childish, completely controllable universe, and that
desire seeks satisfaction in a partial, unconscious, authropomorphizing
of Law, in ascribing to the Law some of the characteristics of the child's
1 Frank, Law and the Modem Mind 15.
lId. at 16.
Father-Judge. That childish longing is an important element in the expla-

nation of the absurdly unrealistic notion that law is, or can be made,
entirely certain and definitely predictable .... The Law can easily be
made to play an important part in the attempted rediscovery of the father.
For, functionally, the law apparently resembles the Father-as-Judge. 1
Jerome Frank believes that the consequences of such an illusion

have their effects on many additional areas of the law, e.g., the
area of judicial law-making. Here again, the basis of the myth
that judges do not make law is the childish illusion that certainty
can be achieved.
If, therefore, one has a powerful need to believe in the possibility of anything
like exact legal predictability, he will find judicial law-making intolerable
and seek to deny its existence. Hence the myth that the judges have no
power to change existing law or to make law: it is a direct out-growth of a
subjective need for believing in a stable, approximately unalterable legal
world - in effect, a child's world. 2
To a legal realist who regards actual specific past decisions

and guesses as to actual specific future decisions as the law, the
illusion that judges cannot and do not make law is outlandish,
and is, of course, vigorously denied, Thus, the judges, as well as
the lawyers, deceive the lay public about the nature of the judicial
process. Again the question of "why?" is raised, and Frank
promptly comes forth with his usual answer: childish thought-
ways and the legal certainty myth .
. . . The no judge-made law doctrine, it seems, is not, fundamentally, a
response to practical needs. It appears rather to be due to a hunger and a
craving for a non-existent and unattainable legal finality - which, in turn,
may be ascribed to a concealed but potent striving to recapture in the law
the child's conception of the fatherly attributes. 3
1 [d. at 18, 19. Frank does not regard this explanation of the legal myth of rule
certainty as anything other than a partial explanation. "This book, then, from now
on, reads as if unconscious 'father-substitution' were the explanation of the oddities
it discusses. But, we repeat, we are consciOusly using a partial explanation. It is
employed to further the chief aim of this book; the development of that 'realistic'
movement in law which seeks to overcome an astonishingly prevalent blindness to
legal realities." [d. at 21, note. Of course, what Frank regards as legal "realities"
are for other writers in the field of American legal philosophy, sheer nonsense. For
Morris Cohen, or even Karl Llewellyn, this psychological explanation, humble as it
may sound, borders on quackery.
I [d. at 35.
a [d. at 36.
FRANK'S WAR OF LIBERATION
With the lawyer, the judge, and the lay public all deceived,
this leaves only the wise student of legal realities (e.g., Frank)
able to break through the "sound barrier" of legal illusion and
muddled thinking. "Frank's war is a war of liberation." 1 With
the psychologist on his right, and the court room on his left, the
left-wing legal realist is then able to see clearly what the law
"actually" does. But without Frank's "partial explanation" of
childish thinking, no analysis of this kind could be made.
The genealogy of legal myth-making may be traced as follows: Childish
dread of uncertainty and unwillingness to face legal realities produces a
basic legal myth that law is completely settled and defined. Thence
springs the subsidiary myth that judges never make law. That myth, in
tum, is the progenitor of a large brood of troublesome semi-myths .... 2
The end-result of such myth-making is what Frank calls "rule

fetichism." Whenever an object is unduly worshipped, it becomes
a fetish, and in the case of legal philosophy, the worship of
mechanical legal rules has led to an illusory sense of reality and a
complete inability to cope with what the law really is. This kind of
thinking, according to Frank's labels at the more sophisticated
level of legal philosophy, is termed "absolutism," "Bealism,"
"platonism," "legal fundamentalism," or, to use the most loaded
term, "Scholasticism." " ... To say of a man's thinking that it is
scholastic or platonist, is to say that it is tinged with childish
emotions." 3
This crusade against legal ignorance, through the use of self-
awareness, was Jerome Frank's major purpose in Law and the
Modern Mind, and in one fashion or another, he has carried on
this crusade for over twenty-five years.
It is time that we gave up the notion that indirection and evasion are
necessary to legal technique and that in law we shall better achieve our
1 ..... The law must be liberated from the enslaving forces engendered by faith
in the 'Basic Myth' because harmful consequences stem from the illusion or dogma
of legal certainty.... " Harold G. Reaschlein, Jurisprudence -Its American Prophets,
213 (1951).
a Frank, Law and the Modern Mind 41.
3 Id. at 75. C/.: "Apparently Frank regards any jurist as 'classical' who does not
accept the gospel according to St. Jerome." George W. Paton, A Text-Book of Juris-
prudence 19 n. 50 (rev. ed. 1951). Paton under estimates Frank's use of sophisticated
swear-words.
ends if lawyers and judges remain half-ignorant, not only of these ends,
but of the means of achieving them. No, the pretense that judges are
without the power to exercise an immense amount of discretion and to
individualize controversies, does not relieve us of those which result from
the abuse of that judicial power. On the contrary, it increases the evils.
The honest, well-trained judge with the completest possible knowledge of
the character of his powers and of his own prejudices and weaknesses is the
best guaranty of justice. Efforts to eliminate the personality of the judge
are doomed to failure. The correct course is to recognize the necessary
existence of this personal element and to act accordingly. 1
Since the scientific mind, according to Frank, is the adult and

emotionally mature mind, what the modern legal order needs is
more adult minds and less childish thinking. This brings us to
the core of Frank's solution of the basic legal myth in Law and
the Modern Mind, namely, what he calls "the modern mind," a
mind free of father-authority and childish ways of thinking. It
is, as Harry Overstreet has said, the mature mind, and as Frank
has written:
Modern civilization demands a mind free of father-governance. To remain
father-governed in adult years is peculiarly the modern sin. The modern
mind is a mind free of childish emotional drags, a mature mind. And law, if
it is to meet the needs of modern civilization must adapt itself to the
modern mind. It must cease to embody a philosophy opposed to change.
It must become avowedly pragmatic. To this end there must be developed
a recognition and elimination of the carry-over of the childish dread of,
and respect for, paternal omnipotence; that dread and respect are power-
ful strongholds of resistance to change. Until we become thoroughly cogni-
zant of, and cease to be controlled by, the image of the father hidden
away in the authority of the law, we shall not reach that first step in the
civilized administration of justice, the recognition that man is not made
for the law, but that the law is made by and for men. 2
To be completely free of dogma, the modern mature, scientific
mind must be constantly open to change, and must continually
reassess its axioms and postulates. The essence of this self-
labelled pragmatic outlook is skepticism. But while the skeptical
outlook is a necessary tool, the psychological basis of Frank's
writing demands a more detailed examination and assessment.
1 Law and the Modern Mind 138. Frank regards Judge Learned Hand as the best
living example of this type of jurist. What Frank means by the statement" ... and
to act accordingly" is still unclear to me. The psychoanalyst may free a patient from
his illusions, but that in inself is not a prescription for future action. In an age of
anxiety, self-awareness does not make anxiety vanish, or at least the preconditions
of that anxiety. And so it is with the judge. Granted, he understands himself, where
does he go from there?
2 [d. at 252. Ct., "The Role of the Fatherhood Symbolism" in Joseph Rosenfarb,
Fl'eedom and the Administl'atilJe State (N. Y.: Harper and Brothers, 1948), pp. 209-11.
Jerome Frank was in the avant-garde of the psychological move-
ment within the school of American legal realism. Whereas Ha-
rold Lasswell chose the free phantasy method as his fetish, Frank
chose Piaget and his ideas on child psychology. Many cogent
questions have been asked of Frank in respect to his psychological
analysis of law, and perhaps some of the criticisms and comments
on the use of psychology in modem jurisprudential literature
ought now to be more closely examined.
THE USE OF PSYCHOLOGICAL MATERIALS:

JURISPRUDENCE AS THERAPY
Even though Jerome Frank has persisted in announcing that his

use of child psychology is but "a partial esplanation" of the so-
called basic legal myth, some distinctions ought to be made at the
outset between the use of psychological techniques and psychia-
tric treatment (which Harold Lasswell has, on a number of
occasions, suggested and which Frank mentions only sparingly).
For example, in writing about the frictions in government
departments (Frank was a commissioner and later chairman of
the Securities and Exchange Commission), Frank wrote:
... My experience in government leads me to believe that a very con-
siderable part of the friction between government departments, if one
peered behind the rationalizations, could be traced to personality diffi-
culties of one or more of the disputants. Under severe pressure, the best of
men at times become the creatures of inner drives and obsessions of which
they have no awareness. An occasional chat by an overworked official
with a government psychiatrist would make government run more
smoothly. I do not suggest that psychiatry is or can be an exact science.
At best, it is but an art, still in its infancy or adolescence.... 1
This is therapy, not psychological theory, but nevertheless

Frank has his doubts about psychiatry, which he feels is still in its
infancy. If, according to Morris Cohen, psychology is but a
"mushroom science," where does that leave psychiatry (or
psychotherapy), which at least has an empirical medical foun-
dation? At times, those who use psychiatry in connection with
1 "The Scientific Spirit and Economic Dogmatism," in Science For Democracy;
Papers From the Conference on the Scientific Spirit and Democratic Faith 21 (Nathan.
son ed. 1946). See Courts on Trial 250 & n. 7 (1949); and" 'Short of Sickness and
Death'; A Study of Moral Responsibility in Legal Criticism," 26 N.Y.U.L. Rev.
545, 611-12 (1951).
law, even though they are professional psychiatrists, are equally

unclear about its aims. An example in this respect is that of Dr.
Ranyard West, a British psychiatrist, who is highly respected by
Frank, but unmentioned in the writings of other legal realists.
West wrote:
... Equally, no "debunking" of law or lawyers, no precarious "psycho-
analysis" with a flourishing of Freudian terminology need disturb the
well-grounded law or the wise lawyer. The core of the very process that
shows us all as irrational human beings, we doctors who dodge the scien-
tific issue in pursuit of the possible as well as we lawyers who yearn for
rules and guidance firmer than either history or science can give us, has
shown us a function for law to fulfill so firm and clear as to give the legal
profession the thrill of all modem thrills .... 1
What if human beings are irrational creatures? Is that a new

and startling observation? And even if it were, where does that
leave the question of the relation between psychology and juris-
prudence? Perhaps one of the more careful and moderate
legal realists, Karl Llewellyn, can help to clear up the confusion:
And it would seem to go without demonstration that the most significant
(I do not say the only significant) aspects of the relations of law and
society lie in the field of behavior, and that words take on importance
either because and insofar as they are behavior, or because and insofar as
they demonstrably reflect or influence other behavior. This statement
seems not worth making. Its truth is absurdly apparent. For all that,
it -reverses, it upsets the whole traditional approach to law. It turns
accepted theory on its head .... 2
1 "The Importance of Modern Psychiatry to the Lawyer," 14 Ohio St. L.J. 136,
141 (1953). One might be tempted to cry, Hallelujah! But where does this leave the
innocent layman? Also, see his essay, "A Psychological Theory of Law," chap.
XXXVI in Interpretations ot Modern Legal Philosophies 767-87 (Sayre ed. 1947);
ct., David Riesman, "Tensions, Optimism, and the Social Scientist," 13 Psychiatry
518 (1950) and his article, "Some Observations on Law and Psychology," 19 U. Chi.
L. Rev. 30 (1951); A. J. Levin, "Maine, McLennan, and Freud," 11 Psychiatry 177
1948); Hyman Smollar, "A Lawyer Looks at Psychiatry and the Law," editorial
note in 17 Psychiatry 391 (1954); two articles by Jerome Hall, "Psychiatry and the
Law," 38 Iowa L. Rev. 687 (1953), "Psychiatry and Crinlinal Responsibility," 67
yate L.J. 761 (1957); the George H. Dession memorial issue of the Buffalo Law
Review (vol. 5, no. 1, fall 1955); and Percival Bailey, "The Great Psychiatric Re-
volution," 113 Amer. J. ot Psychatry 387 (1956).
2 "A Realistic Jurisprudence - The Next Step," 30 Col. L. Rev. 431, 443 (1930).
Llewellyn goes on to say that we should study judges' and officials' behavior as judges
and as officials, not as children, or as immature adults. Official behavior as such is the
core of his psychological technique. While Llewellyn was quite scornful of Frank's
use of the notion of father-authority in Law and the Modern Mind, he recognized
that much of the book was independent of that idea. See Frank, Courts on Tl'ial
75-78, 159-61; "'Short of Sickness and Death': A Study of Moral Responsibility in
Legal Criticism," 26 N.Y.U.L. Rev. 545, 609-10 (1951).
This is at least an improvement over the views of Frank,
Lasswell, and West. "Behavior," in the Llewellyn sense, is what
officials do, not their unconscious or subconscious motives or
explanations of their inner drives. In my opinion, this is a far
more realistic (and I might add, scientific and pragmatic) ap-
proach to jurisprudence than Frank has proposed because
Llewellyn, as legal philosopher, has the necessary tools for an
evaluation of the kind of legal "behavior" he examines. In short,
Llewellyn does not venture into areas in which he is inexpert.
In the hands of experts, psychology and psychiatry can be of
real value to the lawyer, the judge, and the student of law. 1 This,
in all fairness, I would not deny, but the problem is really one of
who uses these special tools and in what fashion? 2 When the
Gluecks use psychological techniques in criminology, or courts
call on competent psychiatric experts in the treatment of certain
types of criminal behavior, this is a far different and more
expert use of psychological tools than is Jerome Frank's exposure
of the myth of legal certainty. 3 In any case, both the professional
and amateur are trying to understand what they call "behavior"
at the level of judicial action. Here is another example of the
psychiatric approach to the problem of legal behavior:
Today psychiatry has reached the point where it can tell us some signifi-
cant things about the very nature and need of law. It may seem startling
1 There are many good examples of co-operation between medical and psychiatric
personnel and lawyers that have resulted in legal reforms, new state laws, or proposed
model state laws for the future, e.g., State of Michigan, Reporl 0/ the Governor's
Commission on the Deviated Sex Offender (Detroit, Michigan, 1951); also, the report
by Dean Roscoe L. Barrow of the University of Cincinnati College of Law and Dr.
Howard D. Fabing, representing a joint committee of lawyers, psychiatrists and
neurologists, on the need for modernization and improvement of state laws concerning
the treatment of epileptics: Epilepsy and the Law (N.Y.: Paul B. Hoeber, Inc., 1956).
Another area of fruitful exploration between the lawyer and the psychiatrist, as well
as the social worker, has been divorce law reform. It seems to me that these inter-
disciplinary efforts have been far more valuable than the proposed psychoanalysis
of individual judiCial behavior. The work of the Gluecks, Jerome Hall, Henry David-
son, and the late George H. Dession stand out as examples of what can be done when
the artificial boundary-lines of specialized disciplines are transcended.
2 C/.: "Shall we not do more by a less rigidly behaviorist psychological method,
tempered by the consideration that we need to take account of the restraints upon
non-rational individual judicial behavior and that judges are not likely to do better
than we expect them to do. There was a psychological efficacy in the nineteenth-
century idea!." Pound, "Fifty Years of Jurisprudence," (IV - Realist Schools),-
51 Harv. L. Rev. 777, 790 (1938), Pound says that the legal realists do good work,
but realism is not the whole story of what law is and how it functions.
3 This is not to say that Frank as amateur has no right to employ psychological
tools of analysis, but that the findings of amateur and professional alike should be
clearly distinguished from each other.
to think of the psychiatrist as preceptor in legal, moral, and political

philosophy, but by throwing light on man's potentialities for growth, and
on the factors which lead individuals to retreat from maturity and growth,
psychiatry helps law to focus on its goal, the development of the indi-
vidual's potentialities for freedom and productiveness .... 1
Even the most confinned critics of Jerome Frank's use of

psychology can still see the value of some psychological tech-
niques, as long as the focus is on the oven and not the hidden be-
havior of judges and juries. Roscoe Pound, like Karl Llewellyn,
has a much more modest view of the role that psychological
analysis should play in studying the behavior of judges. Pound
writes:
Psychological realism could well direct its program to the psychology of
courts, rather than proceed on dogmatic assumptions as to the individual
behavior of individual judges, and especially to the psychological bases of
the persistence and vitality of a taught tradition systematized in received
treatises and studied both in the formative student period and, in the case
of judges, continuously during long periods of practice before courts and
later of sitting in them. Such an investigation would be more practicable
and profitable than the elaborate study of the relation of the individual
psychology of particular individual judges to particular individual cases,
which has been suggested as the foundation of a science of law. 2
For Roscoe Pound, then, it is the court itself and the action
that transpires there that deserves attention, not the individual
unconscious behavior of judges. Frank would answer Pound by
saying that this is much too modest a view of psychology. It
leaves out what Frank considers to be the crucial element in the
picture, namely, the hidden elements in the judge's actions.
Among the legal realists, the argument ranges far and wide
over this precise issue: what, if any, are the hidden or covert
elements of judicial behavior, and if there are such phenomena,
how should students of law proceed to examine them? Lasswell
1 Manfred S. Guttmacher and Henry Weihofen, Psyclaiatry and the Law (N.Y.:
W. W. Norton, 1952), p. 11. This is an extremely useful text-book on the various uses
of psychiatry in trials, hearings, and legal procedure in general, along with that of
Paul H. Hoch and Joseph Zubin (eds.), Psyclaiatry and the Law (N.Y.: Grune & Strat-
ton, Inc., 1955).
2 Pound, sflpf'a p. 61 at 789. The fact that overt legal behavior is more prone
to study does not necessarily mean that the "hidden" elements in the judicial process
should be ignored. The fact that we are unable at this stage of legal knowledge to
study the unconscious factors of legal behavior with any degree of accuracy or pre-
cision does not mean that these factors are non-existent, but it does place a heavy
responsibility on the observer, a responsibility, in this author's view, that some of the
legal realists have not clearly understood. See Felix Frankfurter, "Mr. Justice Holmes
and the Constitution," 41 Han). L. Rev. 121, 132-33 ns. 33-34 (1927).
would use the free-phantasy method and Frank the teachings of
modern child psychology; Oliphant, Schroeder and Malan, the
findings of behavioristic psychology. Even if there is some a-
greement on the fact thatlegal behavior should be studied with care,
where does this take the argument that psychology is the best or
the most accurate tool for studying this type of behavior? Again, I
will turn to West, who bases his answer to this question on the
humanness as he sees it of legal behavior: " .. . It is upon the fact
of the potential criminal in every man that I would give to law its
psychological grounding. . .. 1
If West can argue that it is the potential criminal in every
man that justifies the use of psychology, why not become even
more basic and say that it is the very fact that man is man and
that his behavior is human behavior (whether we choose to call
it "rational" or "irrational," or a mixture of both, or neither)
that makes legal activity conducive to psychological expla-
nation? Even one of Jerome Frank's strongest supporters has this
to say about Frank's use of psychology in Law and the Modern
Mind:
... The psychology of this book must be regarded as a weapon of attack
upon a cumbersome set of judicial inhibitions, not an instrument of
• .
preCISIOn .... 2
Yet, if Thurman Arnold is correct in saying that Frank is using

a "weapon of attack," how can we judge its accuracy, validity, or
even its effectiveness, if it is not a precise instrument of analysis?
Is it the "attack" that counts the most, the debunking of the
basic legal myth, that counts more than the evidence presented? 3
1 Conscieme ana Society; A Study ot tke Psyclwlogical p,.erequisites ot Law and
Ot"tle1" (N.Y.: Emerson Books, 1945), p. 165.
a Thurman W. Arnold, Boo~ Review of Law and the Modern Mind, "Law and
Men," 7 Sat. ReI!. ot Lit. 644 (March 7, 1931). Arnold also says that the book is intelli·
gible to the layman, a view that I cannot accept.
8 Ct.: "Mr. Frank, however, has no clear idea as to what he is thus committing
himself to; and elsewhere, especially in the footnotes, he explicitly recognizes the
existence and need of some rules and certainty in the law. This admission, however,
still leaves his fundamental thesis rather vague and inconsequential, and his polemics
pointless, if not unfair. For obviously, if the law contains both rules and discretion,
both certainty and uncertainty, the significant issue is precisely the one that Dean
Pound faces and that Mr. Frank dodges, viz., where to draw the line between legal
rule and judicial discretion .
. . . There can be no doubt that the desire for complete certainty - the craving for
absolute truth - is a trait of all creatures born of woman ... " Morris R. Cohen, Law
and the Social O,tler (N. Y.: Harcourt, Brace and Co., 1933), pp. 359, 360.
If, as Frank has said in so much of his writing, jurisprudence

must be scientifically sound and pragmatic to the best of its
ability, how can Arnold's explanation be justified?
Other writers, e.g., Pound, Morris Cohen, Fuller and Gurvitch,
were equally appalled at the failure of the psychological realists
to prove their assertions and to keep a sense of balance once they
emerged from their couch. Pound was gracious enough to accept
the good works of the psychological realists in spite of their care-
less use of psychological dogma, but Cohen was not nearly so kindly
in his criticism of Frank. 1 Pound, who has borne the brunt of
much of Frank's invective, replied in kind. 2
For Georges Gurvitch, the serious deficiency in the psychologi-
cal approach to law is methodological; 3 whereas Lon L. Fuller,
1 " •.. His complacent assumption that psychoanalytic concepts like father-sub-
stitute are 'the best instruments now available for the study of human nature' begs
more than he or anyone else has as yet proved. Psychoanalysis has doubtless led
to some therapeutic results. But so have Christian Science and other faith-cures,
and a logician must contend that therapeutic efficiency does not prove the truth of
all the different faiths that produce it. Psychoanalysis will become scientific only
when, like biology, it becomes really critical of its own evidence, instead of resenting
- as all sectarian faiths do - the demand for such evidence .... It may perhaps be
unfair to judge Mr. Frank's book by a standard of logical rigour not generally applied
to books written for the general public. But as Mr. Frank is engaged in a serious and
important task, it must in the interest of the latter be pointed out that the myth of a
completely certain legal system, apart from the work of judges - a myth that has its
roots in legal experience from time immemorial - cannot be overthrown by an ad-
mitted fiction from the mushroom science of psychoanalysis ...... Id. at 360-61.
One should, however, take note of Frank's fourteen other possible explanations of the
basic legal myth in app. I of Law and the Modern Mind 263 (1930), as well as his later
criticism of Freud in Save America First 198-201 (1938) and Fate and Freedom 64-69,
351-52 (1945) and his extremely critical book review of F. R. Bienenfeld, Rediscovery
of Justice, 38 Calif. L. Rev. 351 (1950).
2 " ••• The new realists have their own preconceptions of what is significant, and
hence of what juristically must be. Most of them merely substitute a psychological
must for an ethical or political or historical must.
Nor is the psychological neo-realism of the moment wholly emancipated from a

priori dogmatism with which it reproaches older types of juristic thought ......
Pound, "The Call For a Realist Jurisprudence," 44 Harv. L. Rev. 697, 700, 706 (1931).
3 . . . . . Some turn toward a sociology of law based exclusively on reality judgments
and free from dependence on jurisprudence of which the sole task is reduced to ap-
plying the results of reality judgments without any consideration for ends and values
(Llewellyn, Arnold). Others would eliminate jurisprudence in general, to replace it
not by sociology, but by a naturalistic psychology which describes the minds of
lawyers (Robinson) or even by psychoanalysis of lawyers (Frank) ....
. . . Here it suffices to note that no kind of individual psychology can generally lead
to a contact with the problems of law as phenomenon essentially constituted by
collective experience and linked to the social whole.... " Gurvitch, Sociology of Law
N. Y.: Philosophical Library and Alliance Book Corp., 1942), pp. 172, 175--176.
who is considered one of the leading non-realists, finds at least a
dubious value in philosophical exorcism. 1
Even the late Felix S. Cohen, who was classified as a legal
realist, was a staunch critic of Frank and the psychological
realists. His book, Ethical Systems and Legalldeals, 2 describes the
role of values in respect to the legal order, for he was always critical
of those who felt that empirical analysis automatically eliminated
values from the realm of objective reality. 3
THE FUTURE OF
PSYCHOLOGICAL TOOLS IN THE STUDY OF LAW
Smashing the mechanistic legal idols of the cave is one thing,

but doing it in a manner that convinces the students of juris-
prudence is quite another matter. If Frank is merely waging battle,
he has succeeded many times over since 1930. But it seems to
this writer that some of the contributions of the psychological
legal realists (Frank, Lasswell, Robinson, and West) have been
tendentious at their best, and their ablest work has not always
shown the accuracy and care that the non-and anti-realists are
accused of lacking. If psychology and psychiatry are to be useful
tools in jurisprudence, the empirical method and scientific spirit
that Frank has described so well must prevail, not the "fight
theory" of the court room, or of the law journal. 4
1 With his usual cutting philosophical tang. Professor Fuller writes: "The realist
movement has done an immense service to American legal science in inculcating in it
a healthy fear of such very real demons as Reified Abstractions, Omnibus Concepts,
and Metaphors Masquerading as Facts." Fuller, "American Legal Realism," 82 U.
Pa. L. Rev. 429, 443 (1934). See his The Law in Quest 0/ Itself (Chicago: The Foun-
dation Press, 1940).
I An Essay on the Foundations 0/ Legal Criticism (N.Y.: Falcon Press, 1933).
8 "It is one of the serious dangers of the functional approach that those who invoke
it for the purpose of description may without further thought utilize it as a criterion
of value. It is important for the jurist to remember that when he has described the
human significance of a rule he has not thereby justified its existence." F. Cohen,
"The Problem of a Functional Jurisprudence," 1 Mod. L. Rev. 5, 24-25, (1937).
Also, see his excellent article, "Transcendental Nonsense and the Functional Ap-
proach," 35 Col. L. Rev. 809 (1935), repro in 2 Etc.: A Rev. 0/ Gen. Semantics 82
(winter 1944-45).
4 See the essay by Harold D. Lasswell, "Impact of Psychoanalytic Thinking on
the Social Sciences," in Leonard D. White (ed.), The State of the Social Sciences
(Chicago: Univ. of Chicago Press, 1956), pp. 84-115; Albert Ellis, "An Introduction
to the Principles of Scientific Psychoanalysis," 41 Genetic Psychology Monographs,
149-205 (1950); Bailey, supra p. 60, note I.
On the problems and the dangers of empirical study in the social sciences, see Bar-
rington Moore, Jr., "The New Scholasticism," 6 World Politics 122 (1953). For a
The shock that Jerome Frank gave to the world of American

jurisprudence was a needed one, but the manner in which he did
it left much to be desired. His was not the first analysis of legal
behavior, nor was it the most unique one. By 1930, the pragmatic
tradition in American jurisprudence was pretty much a settled
matter, insofar as legal realism was concerned. But Jerome Frank
wanted to go one step further. Whereas the realist could look
behind the legal rules to official behavior, Frank wanted to look
behind the official behavior of judges and juries to find what he
considered to be the real bases of their actions. The reductio ad
absurdum of his case was his slavish reliance on the tenets of child
psychology. His somewhat arbitrary selection of the work of
Piaget and Rignano did not convince most legal philosophers that
his conclusions were valid ones, in spite of the fact that Jerome
Frank, on many occasions, both in his speeches and his writings,
has strongly denied an addiction to the psychological approach
to the study of legal behavior. Many important questions still
justified examination, and among those questions that still
lurked in the minds of legal writers were the following:
1. Can adult behavior always be traced to childhood behavior?
2. What do we mean by legal behavior, and how do we analyze it?
3. What is meant by the "unconscious" behavior of judges and juries?
4. Do all children have the same degree of father-worship?
5. Do all men look for a father-substitute after childhood ends and
adulthood begins?
6. Is Law always the father-substitute that men choose in adult life?
7. Are words always used "magically" with the intent to deceive others?
8. Are the legal rules that men follow and respect part of their legal
behavior?
9. Is the search for security and stability, and especially legal certainty,
always childish?
10. Is self-awareness in judges really a panacea, for what happens to the
biases and value judgments that still remain in their personality?
The use of psychological techniques as the sine qua non of
Frank's earlier legal theory was ingenious and perhaps even
unique in approach, but it was not necessarily convincing in the
amount of or the kind of evidence that was marshalled against the
basic legal myth. 1 Perhaps new evidence and experimentation in
penetrating analysis of the problems encountered in studying values, see Arnold
M. Rose, "Sociology and the Study of Values," 7 British Journal of Sociology 1 (1956).
1 "Unfortunately, the fruitful results attained by the realists have been somewhat
obscured. The realists, in recognizing the underlying bias of the characteristic tra-
ditional emphasis in law, often overreached in seeking arguments and illustrations
which would bring into the sharpest focus possible the weakness of the more usual
the field pf psychology and law will lead to a refinement of these
techniques. 1 But until reliable and empirical evidence is found
by the psychological legal realists, Frank's notion of Law as a
Father-substitute will be suspect and at the most merely an
interesting hypothesis. 2 Even as a "partial explanation," many
American legal writers would not accept it today. And, it seems
to this writer, until American jurisprudence accepts psychological
evidence at face-value for its own purposes, the use of such data
will be of value only to those who already believe in its efficacy. 3
approach. Not always content with a factual and operational approach to their own
problems, nor satisfied with providing evidence of the irrelevance of most of the
prevailing philosophies to the pressing needs of law, and proceeding cautiously to
state the realists' own method and perspective, some realists brought confusion into
their arguments by attitudes and analyses which are misleading if not erroneous .... "
Edwin N. Garlan, Legal Realism and Justice 11 (1941). Though not specifically
mentioned, I think that Frank fits this description.
1 A good example of Frank's use of psychological materials is his App. VIn in
Law and the Modern Mind 323-24, entitled, "For Readers Who Dislike References to
'Unconscious Mental Processes.' " Here, in order to "mollify" his critics, Frank refers
to Hart and Northridge, and quotes from the work of Rignano. Perhaps these men
are good authorities on man's unconscious thought'processes, but how is the reader
to judge their work? For a man who bases an entire book and a good share of the
rest of his writings on a fundamental concept from the field of psychology, I would
feel tha t a two-page appendix tha t merely repea ts wha t has alread y been said in the bod y
of his book is not sufficient evidence to convince the unbelieving reader. To my mind,
this is not mollification.
2 Since the publication of Law and the Modern Mind in 1930, Frank has insisted
on a qualified use of psychological materials in the study of legal behavior. See the
preface to the sixth printing of Law and the Modern Mind xxi-xxii (1949); Courts on
Trial 157-65 (1949) ; If Men Were Angels 295-97 (1942). In spite of his insistence that
the notion of law as a father-substitute is a "partial explanation," Law and the
Modern Mind has remained his pioneer work and in many respects his most seminal
work. While it is true that Frank is not addicted to many of the ideas that the
presented in his first book, it still remains the book that placed him in the forefront
of the psychological wing of American legal realism and for that reason deserves
special attention.
S When I discussed this question with a practicing psychiatrist, he said that the
"validity" of Frank's ideas on the psychology of law depended not upon what
psychologists or psychiatrists said, but on how the members of the legal fraternity
accepted such evidence. In essence, he was saying that the psychiatrist and the legal
philosopher might use similar techniques, but with entirely different criteria of
judgment, and with different purposes in mind. Jerome Frank took his first step
out of line: he went to the psychologists for their conclusions, without any positive
evidence that these conclusions couId apply to legal analysis. Piaget, Hart, West,
and Rignano may be reputable men in their own field, but until American writers
on law accept their ideas as applicable to the study of legal behavior, they are merely
Frank's assertions and nothing more. Of course, the "truth" of such assertions will
still be in doubt, whether they are accepted by psychologists, psychiatrists, legal
writers, or no one. Let it suffice at this moment to say that the legal philosopher is
under no obligation to accept the findings of psychology, psychoanalysis, or psychia-
try, any more than the members of these professions are under obligation to accept
Frank's use (or Lasswell and others) of their tindings. The validity of such work is
independent of what any of the professions think of each other. But Jerome Frank
still bears the burden of convincing his own brethren. And, in my opinion, the major
problem still remains unanswered: how can students of jurisprudence judge a man
(e.g., Frank) who uses materials from a field that is alien to their thought, and that
requires professional judgment by persons other than themselves? I confess that
I do not know the answer.
CHAPTER FOUR
The Role of the Judge in

the Judicial Process
We may now venture a rough definition of law
from the point of view of the average man: For
any particular lay person, the law, with respect
to any particular set of facts, is a decision of a
court with respect to those facts so far as that
decision affects that particular person. Until a
court has passed on those facts no law on that
subject is yet in existence. Prior to such a de-
cision, the only law available is the opinion of
lawyers as to the law relating to that person and
to those facts. Such opinion is not actually law
but only a guess as to what a court will decide.
JEROME FRANK 1
1 Jerome Frank, Law and the Modern Mind 46. In the

next paragraph Frank adds: "Law, then, as to any
given situation is either (a) actual law, i.e., a specific
past decision, as to that situation, or (b) probable law,
i.e., a guess as to a specific future decision." Ibid. Also,
see his note (t) at the bottom of the same page.
Jerome Frank's attack on what he considers the basic legal myth
is severely critical of the role that judges play in the judicial
process. As a crusading reformer, Frank was not a carping critic,
for he made many helpful suggestions of how the courts could
function more smoothly and intelligently, especially in the process
of finding the facts in a particular case. The myth of legal rule
certainty plagues the entire legal system, and hence, Frank is
bent on examining this myth wherever it does harm.
Yet trial-court fact-finding is the toughest part of the judicial function.
It is there that courthouse government is least satisfactory. It is there that
most of the very considerable amount of judicial injustice occurs. It is
there that reform is most needed. 1
If legal rules could be relied upon in every type of case, Frank

feels the problem of adjudication would be a simple one. But the
legal rules, as he has said on so many occasions, can serve only
as guides to future decisions.
But what, with unfortunately few exceptions, judges have failed to see is
that, in a sense, all legal rules, principles, precepts, concepts, standards -
all generalized statements of law - are fictions. In their application to any
precise state of facts they must be taken with a lively sense of their
unexpressed qualifications, of their purely "operational" character. Used
without awareness of their artificial character they become harmful
dogmas .... We want judges who, thus viewing and employing all rules
as fictions, will appreciate that, as rules are fictions "intended for the sake
of justice," it is not to be endured that they shall work injustice in any
1 Frank, Courts on Trial: Myth and Reality in American Justice. (Princeton:
Princeton Univ. Press, 1949), p. 4. By "court·house government," Frank means the
work of all courts, but particularly that of trial courts, where the important but
unsung work of the judges counts the most, in his estimation.
particular case, and must be moulded in furtherance of those equitable

objects to promote which they were designed. 1
The mature judge is the judge who can recognize the provision-
al nature of legal rules and consequently avoid their harmful ef-
fects. He is the completely conscious jurist, conscious of his role
as a user of legal rules, and conscious of the inherent limitations
of the rules themselves. For this type of judge, rules are but -
psychological pulleys, psychical levers, mental bridges or ladders, means of
orientation, modes of reflection, "As-Ifs," convenient hypostatisations,
formulations, sign-posts, guides .... 2
Even if we accept rules as guides to future decisions, this still
leaves the actual process of decision making in a quagmire of un-
certainty.
The rules, that is, do not pyoduce uniformity of decisions (judgments, orders or
decrees) in what we have called "contested" cases, but only uniformity of that
portion of opinions containing the rules.
And the legal rights and duties of any man are equally unknowable.
Before and until a specific enforceable judgment has been entered, every
bit of advice a lawyer gives about any man's legal rights and duties, and all the
rights and duties under every document a lawyerpyepares, are subject to that
unavoidable uncertainty which results from the fact that no specific rights or
duties can be known until a specific enforceable judgment has been entered
in a future lawsuit pertaining to those specific rights or duties - a judgment,
which, so far as anyone can tell, may turn on conflicting testimony, a judgment
which is therefore unguessable.
The uncertainty of most legal rights and duties is then due to their
dependence on the decisions in future lawsuits which, in turn, are affected
by at least three elements of uncertainty: (1) Many of the legal rules are
unsettled or vague. (2) Some legal rules are clear and precise. But the
guess of the judge or jury as to the facts in a contested lawsuit is unguess-
able, even when the legal rules are exact. And no one can pyophesy which
lawsuits will be "contested" or what conflicting testimony will be introduced
in any law suit. (3) The reaction of the judge to his guess or the jury to its
guess about the facts in a "contested" suit, is unpredictable. 3
1 lAw and the Model'", Mind 167.
8 lIJ. at 167. Ct. " ... It is important that the mechanism of legal reasoning should
not be concealed by its pretense. The pretense is that the law is a system of known
rules applied by a judge; the pretense has long been under attack. In an important
sense legal rules are never clear, and, if a rule had to be clear before it could be im-
posed, society would be impossible.... " Edward H. Levi, A", IntrotltlCHon to Legal
Reasoni",g (Chicago: University of Chicago Press, 1949), p. I. At the bottom of the
same page, Levi adds this note regarding the attack on the pretense of legal rules:
"The controlling book is Frank,lAw and the Moder,. Mind (1936)."
I Frank, "Are Judges Human?" 80 U. Pa. L. Ref). 17, 36, 46, 47-48 (1931). By
"contested case," Frank means "a case in whiell a question of fact is raised and in
which conflicting testimony is introduced with respect to the facts in question."
Frank, "What Courts Do In Fact ," 261U. L. Reu. 645, 650 n. 10 (1932).
THE ROLE OF THE JUDGE 73
WHAT COURTS DO IN FACT
"What courts do in fact," then, is quite different from what the

layman thinks they do. The notion of a perfect set of legal rules
that the judges can fit to the particular facts of a specific case
simply does not stand the test of scrutiny.
Frank summarizes the difference between the myth and the
reality of judicial decision with a set of formulas: the convention-
al formula is R (legal rules) X F (the facts of a case) gives D (the
decision in that case). The actual process of adjudication, ac-
cording to Frank, is S (all of the stimuli surrounding the judge
and the case) X P (the personality of the judge) gives D (the
decision). But the latter formula has no predictive value, so Frank
uses this formula instead: R (legal rules) X SF (the subjective
facts) gives D (the decision). "Subjective" facts are those facts
that are found by the judge and jury, riot the actual objective facts
thattookplacein a particular place ata particular time prior to trial.
The lawyer's task is to predict 1 and anticipate future court
enforceable decisions and to try to win specific cases. No lawyer
can be sure of what the objective facts actually are, or what im-
pressions his side of the facts will make on the judge and the jury.
He must take his chances and hope for the best.
Opinions, then, disclose little of how judges come to their conclusions. The
opinions are often ex post facto; they are censored expositions .
. . . The lawyer's task, then, becomes this: The determination of what

produces the judge's hunches .
. . . It is perhaps wise to add that I have no naive notion that an "unpre-

judiced" judge - one without any preconceptions and emotional attitudes-
has ever existed, or will ever exist, and that I have no desire to live in a
society in which such sub-human or super-human judges exercised the
power of judging. What is wanted in any given society are judges with
what the society conceives to be the correct prejudices .... But it is
desirable and, I think possible, to have judges moderately conscious of and
therefore able to check the worst effects of their own biases. 2
1 "Of the severe limits which the vagaries of fact-finding and other factors impose
on a lawyer's capacity to predict, Judge Jerome Frank has spoken fully und un-
answerably.... "Benjamin Kaplan, in "The Lawyer's Role in Modern Society; A Round
Table," 4 J. Pub. L. 1,31 n. 2 (1955). Ct., Louis M. Brown, "The Law Office - A
Preventive Law Laboratory," 104 U. Pa. L. Rev. 940, 942-43, n. 10 (1956).
2 Frank, "What Courts Do In Fact," 26 Ill. L. Rev. 645, 653, 655, 761, 764, n.
55 (1932). But what are the community's "correct prejudices"? And how is a judge
Since the facts in a case have to be "found," they are never

really the objective facts because the real situation that occurred
is being reconstructed by human minds that select and remember
only certain facts. Finding the facts is the most difficult problem
in judicial fact-finding.
For, if the facts as "found" by the trial court do not approximate the
"objective" facts of the case - the facts as they actually occurred - the
court's decision will be wrong and unjust, no matter how impeccable are
the legal rules applied by the court. The "right" rule applied to the wrong
facts - to facts which do not match the actual facts - cannot produce a
correct or just decision. 1
How can a court find the "actual" facts of a case? Especially
where there is confllcting testimony. Frank does not have a pat
answer, except that the judge should show some humility and
recognize the problem for what it is.
In the many cases where the testimony is in conflict, can there ever be
much "objectivity" in judicial decisions, or - more important, for present
purposes - much of uniformity in the translation of community ideals
into those decisions? I confess that I do not know the answer. To some
extent, the difficulty can be surmounted by self-knowledge on the part
of the judge, by a self-scrutiny revealing to him his biases, followed by an
effort on his part to bring them into line with acceptable moral ideals. But
that is no complete solution. 2
If the lawyer must predict what the judge's "hunch" will be,
how should he undertake this hazardous endeavor? The answer
to this question is for Jerome Frank the key to a clearer under-
standing of what makes judges human .
. . . If the law consists of the decisions of the judges and if those dicisions
are based on the judge's hunches, then the way in which the judge gets his
hunches is the key to the judicial process. Whatever produces the judge's
hunches makes the law. What, then, are the hunch-producers? What are
the stimuli which make a judge feel that he should try to justify one
conclusion rather than another?
to know whether his prejudices are the "correct" ones in a particular case at a par-
ticular time? See Frank, Courts on Trial 413.
1 Frank, Book Review, 56 Yale L. J. 589, 592 (1947). In most of his writings,
Frank does not concern himself with the "just "decision, or the problem of "justice"
in general. In the case of this 1947 review, he equates a factuany "correct" decision
with the "just" decision in a case, but does not trouble himself with the philosophical
implications of this view. Aside from the problem of justice, the question of what is
meant by objectivity (what is a fact?) is a difficult one. See chap. 14, "Hard Facts,"
in Frank's Fate and Freedom 174-87 and" 'Short of Sickness and Death': A Study
of Moral Responsibility in Legal Criticism," 26 N. Y.U.L. Rev. 545, 575-79 (1951).
a Frank, Book Review, 59 Haf'V. L. Rev. 1004, lOll (1946). What Frank means by
"acceptable moral ideals" is nebulous and undefined in most of his writing. This
particular use of careless philosophical language may be the result of Frank's eclectic
... What are the hidden factors in the inferences and opinions of ordinary
men? The answer surely is that those factors are multitudinous and com-
plicated, depending often on peculiarly individual traits of the persons
whose inferences and opinions are to be explained. These uniquely indi-
vidual factors often are more important causes of judgments than anything
which could be described as political, economic, or moral biases. 1
Yet, if the witnesses cannot accurately reproduce the facts,
where does that leave the judge? In the search for the real or
"actual" facts, the judge really deals with two sets of facts: the
facts that are being sought (the original or objective facts), and
those facts that come out in the trial itself.
Strangely enough, it has been little observed that, while the witness is in
this sense a judge, the judge, in a like sense, is a witness. He is a witness of
what is occurring in his court-room .... If his final decision is based upon
a hunch and that hunch is a function of the "facts," then of course what,
as a fallible witness of what went on in his court room, he believes to be
the "facts," will often be of controlling importance. So that the judge's
innumerable unique traits, dispositions and habits often get in their work
in shaping his decisions not only in his determination of what he thinks
fair or just with reference to a given set of facts, but in the very process
by which he becomes convinced what those facts are. 2
Since the individual personality of the judge is the cardinal
factor in the adjudicatory process, law will vary according to the
type of personality exhibited by the individual judge passing
decision in any specific case, and the various stimuli operating
to make the individual judge behave in a particular manner.
This was the view of Theodore Schroeder,3 who believed that
psychology was the answer to our problem. But even though
Frank is strongly addicted to the myth of the Law as a father-
substitute, he cannot wholly accept this explanation.
If Schroeder were right, the discovery of the hidden causes of decisions
would be fairly simple. But the job is not so easy. The directing impulses of
judges will not so readily appear from analyses of their rationalizing
words. We shall not learn how judges think until the judges are able and
ready to engage in ventures of self-discovery.
. . . For in the last push, a judge's decisions are the outcome of his entire
life-history .... 4
nature, but being an eclectic does not excuse him for not being a careful scholar.
1 Law and the Modern Mind 104-06. But this problem still remains: how does one
evaluate and assess these "uniquely individual factors"? These, and many other
methodological problems, leave important gaps in Frank's analysis of the legal order.
2 !d. at 109-10, 110-11.
3 Schroeder, "The Psychologic Study of Judicial Opinions," 6 Calif. L. Rev. 89,
93 (1918).
4 Law and the Modern Mind 114, 115. Regarding Schroeder, see the notes on pp.
THE ANATOMY OF COURT-HOUSE GOVERNMENT
Once it is recognized that objectivity in the trial process is an

impossibility, Frank's search for the actual realities of court-
house government begins:
In our modem method of trial, as I told you, there are two factors which
make subjectivity unavoidable. The first relates to the witnesses. They do
not reproduce mechanically the events which they saw and heard. Their
sight and hearing are often faulty, and so are their memories. More than
that, they often err in telling their stories in court. So here is one element
of subjectivity. There is another, which, as I said, is less frequently
recognized and acknowledged: The trial judges or juries are fallible witnes-
ses of the fallible witnesses. 1
If each judge's reactions are unique, then the judge's decision

is a unique experience, not a mechanical one, as the nineteenth
century jurists visualized it. 2 It is in the process of discovering
the "truth" about judicial behavior that Frank turns to a discus-
113-14. And interestingly enough, Frank is quick to add: "It should be obvious from
the above that we do not think psychological studies are likely to make decisions markedly
more pl'edtctable." Id. at 117, note.
1 COUl'ts on Tl'ial 47. For a discussion of how the "unconscious" factors affect the
judicial process, see the statement of Mr. Justice Frankfurter in Public Utilities
Commission v. Pollak, 343 U.S. 451, 466-67 (1951).
a C/., Max Rheiustein: " ... As long as judges held the belief that their activity
was of a semi-automatic character, and that by the very nature of things and by
intrinsic necessity, the could not but apply the law, judicial law observance was well
guaranteed, indeed. 'Free law' jurisprudence of Europe and sociological jurisprudence
and legal realism of America have shattered that idyllic belief, have analyzed the
judicial process, and have taught the judges that their activity is far from being
automatic. For those of us who have grown up under the influence of the New Juris-
prudence, it is hard to imagine how judges could ever so deceive themselves about
the scope and extent of their powers. But they were serious and sincere men who
declared that in judging, they were only putting the text of the law on one side, the
facts of the case on the other, and by logical necessity were thus led to the one and
only correct decision; or who declared that they were only finding and never creating
law; or that they were only interpreting and never supplementing the expressed
intention of a testator, of contracting parties, or of a legislature. Such statements
can be explained not only by the desire of evading criticism for a decision by ascribing
it to the logical compulsion of a system of rules created by others, but also by a
sincere self-deception which could give the judge a soothing sense of freedom from
responsibility for decisions by which human fates would be made or crushed. The
conscience of the judge is eased when he can ascribe the decision which appears
repugnant to his own sense of justice to a compelling necessity rather than to a vo-
litional decision of his own." Rheiustein, "Who Watches the Watchmen?" in In-
te1'p"etations oj Modem Legal Philosophies 601-602 (Sayre ed. 1947). This rationalistic,
mechanistic approach to decision-making was no longer acceptable to the legal
realists; yet, not all of them could go to the other extreme and exclaim that if the
decision wasn't automatic, it was all "hunch" on the part of the judge.
sion of what he calls "what courts do in fact. If it is the facts that
II
are being sought, then the judge's reactions to and interpretation

of what he thinks the facts are become part of this search for
legal reality .
. . . A trial judge is himself a witness - a witness of the witneses. His faulty
observation of the witnesses, due to inattention or other factors, or his
mistaken recollection of his observations, effect his fact determinations. 1
One legal realist, Professor Fred Rodell of the Yale Law

School, in reviewing Frank's Courts on Trial, said that a dis-
tinction ought to be made between what Rodell considers to be the
inevitable and the not-so-inevitable factors in judicial fact-
finding:
Now it happens that Judge Frank's fluid human factors which prevent
precise fact-finding fall, by my judgment, into two groups although Frank
does not so divide them. One group might be called the inevitable factors -
the factors which would still be present if every person in the courtroom
were completely honest, completely impartial, and reasonably intelligent.
They include the fallibility of witnesses' powers of observation and per-
ception; the fallibility of witnesses' memories; the fallibility of witnesses'
efforts to communicate in speech things "remembered" as having been
"seen"; the fallibility of judges' or jury's powers of observation and
attention; the falliblity of judges' or jury's memories of what they think
they hear; and the ultimate fallibility of any human attempt to pull a
strictly mechanical judgment about alleged facts out of an emotion-laden
preconception-filled human mind. None of these muddying or distorting
factors can ever be completely eliminated from any effort to recapture
past facts in any kind of court. 2
1 Frank, "Judicial Fact-Finding and Psychology," 14 Ohio St. L.J. 183, 186-87
(1953). Note that after twenty-three years, even Frank's wording has not changed
much.
8 Rodell, Book Review, 25 Ind. L.J. 114, 117-18 (1949). The not-so-inevitable
factors or obstacles to accurate trial court fact-finding, according to Rodell, are bias,
the dramatic atmosphere of the courtroom, and the "game" that adversaries play
in trying to win their case. "But nowhere does he specify that all these not-so-
inevitable obstacles to accurate fact-finding stem from one single basic root. That
root is the adversary nature of all our courthouse government - our stubborn re-
tention of a somewhat more civilized form of trial-by-combat as the foundation of all
that we call law." I d. at 118. Chapter VI and other portions of Courls on Trial which
deal with "trial by combat" would certaiuly be cited by Frank in answering Rodell's
criticism. In a similar vein, Professor Edmund M. Morgan made the following
comments in a book review of Irving Goldstein, Trial Technique: " ••. he accepts a trial
for what it is - a game in which the contestants are not the litigants but their lawyers .
. . . He has shown by his own unperturbed frankness with what complaisance the
profession, which would smile the superior smile of derision at the suggestion of a
return of trial by battle of bodies, accepts trial by wits. In all innocence, he has
produced a document which is a devstating commentary upon an important aspect
of our administratinn of justice." 49 Haro. L. ReI). 1387, 1389 (1939).
The guess-work that Frank describes applies to the facts of the

case, as well as the behavior of the judge, for no lawyer or client
can ever be completely sure that the judge will understand what
has transpired in his courtroom. 1 It is the unpredictable (what he
calls "unguessable") nature of legal rights and duties that bothers
Frank so much:
... Guessing legal rights, before litigation occurs, is, then, guessing what
judges or juries will guess were the facts, and that is by no means easy.
Legal rights and duties are, then, often guessy, if-yo See what this means:
Most legal rights turn on the facts as "proved" in a future lawsuit, and
proof of those facts, in "contested" cases, is at the mercy of such matters as
mistaken witnesses, perjured witnesses, missing or dead witnesses, mis-
taken judges, inattentive judges, biased judges, inattentive juries, and
biased juries. In short, a legal right is usually a bet, a wager, on the chancy
outcome of a possible future lawsuit. 2
THE JUDICIAL "HUNCH": THE CONTRAPUNTAL STRAINS

OF FRANK'S ANALYSIS OF THE JUDICIAL PROCESS
Since Jerome Frank believes that judges are human beings, their
reasoning processes are like those of their fellow humans, viz.,
they make their judgments and then work backwards to find
premises (rationalizations) that will justify and substantiate their
conclusions. This is the syllogistic process of decision-making
(Frank terms it "sterile logic-chopping") that Frank thinks the
legal profession has so blindly failed to acknowledge.
The judicial "hunch," as Frank and other writers have called
it, is nothing more or less than what most judges do in fact. But
few judges will recognize or admit what is considered normal
everyday behavior on their part.
For the reaction of a trial court to conflicting oral testimony frequently
does not start with a nice differentiation between rules and facts, but
starts with an unanalyzed, undifferentiated, composite reaction - a
"hunch" or unanalytic "gestalt" (a "whole"). There is very considerable
reason to believe that juries often do not go beyond such composite
(or gestalt) reactions in arriving at their verdicts. 3
1 "Therefore, my description of the nature of a legal rule needs revision: a legal
rule means, 'If the jury or trial judge (expressly or impliedly) says that it believes
the facts are thus and so, and if there is some substantial evidence to justify that
statement of belief, then these legal consequences ensue.' " Frank, "Cardozo and the
Upper· Court Myth," 13 Law & Contemp. Prob. 369, 379 (1948).
2 C ouris on Trial 27.
3 Frank, .. 'Short of Sickness and Death': A Study of Moral Responsibility in
Legal Criticism," 26 N. Y.U.L. Rev. 545, 595 (1951). Ct., Jack G. Day, Gestalt Psycho-
Jerome Frank is far from being the first critic (and later
judge) to admit that decisions are not always spontaneous "finds"
that appear to fit the facts, but are usually the result of compli-
cated deliberation and rationalization. What judges say, the
dicta as well as the obiter dicta, is certainly, in many cases, far
different from the results of their decisions. The late Justice
Benjamin N. Cardozo was one judge who believed in the "lucky
find" :
... The law has its piercing intuitions, its tense, apocalyptic moments.
We gather together our principles and precedents and analogies, even at
times our fictions, and summon them to yield the energy that will best
attain the jural end. If our wand has the divining touch, it will seldom
knock in vain. So it is that the conclusion, however deliberate and labored,
has often the aspect in the end of nothing but a lucky find .... 1
Judge Joseph C. Hutcheson, Jr. came to a similar conclusion:
... I, after canvassing all the available material at my command, and
duly cogitating upon it, give my imagination play, and brooding over the
cause, wait for the feeling, the hunch - that intuitive flash of understand-
ing which makes the jump-spark connection between question and
decision, and at the point where the path is darkest for the judicial feet,
sheds its light along the way .... in feeling or "hunching"out his
decisions, the judge acts not differently from, but precisely as the
lawyers do in working out their cases, with only this exception; that the
lawyer, having a predetermined destination in view, - to win the law suit
for his client - looks for and regards only those hunches which keep him in
the path that he has chosen, while the judge, being merely on his way with
a roving commission to find the just solution, will follow his hunch wher-
ever it leads him .... 2
Judge Hutcheson, in a jocular mood, adds:
I shall further affirm, and I think maintain, that the judge is, in the
exercise of this faculty, popularly considered to be an attribute of only the
gambler and the short story detective, in the most gallant of gallant
companies .... 3
In addition to his discussion of syllogistic reasoning and
psychological rationalization, Frank turns to an alien field,
music, for a novel explanation of what takes place when a judge
arrives at a decision:
logy and the Judicial Process (Unpublished Master's thesis, The Ohio State Uni·
versity, 1940); and Kurt Koffka, "Gestalt," in 6 Encyc. Soc. Sci. 642 (1931).
1 Cardozo, The Paradoxes of Legal Science 60 (1927).
S Hutcheson, "The Judgment Intuitive: The Function of the 'Hunch' in Judicial
Decision," 14 ComelZ L.O. 274, 278 (1929). Neither Hutcheson nor Cardozo said that
the judicial "hunch" or the "lucky find" operates in every case. See Hutcheson,
"Lawyer's Law, and the Little Small Dice," 7 Tulane L. Rev. 1 (1932).
3 [d. at 279. The company would also excite Frank.
His response to that testimony is, in part, "wordless knowledge." To be

completely articulate, to communicate that response satisfactorily, he
would be obliged - as a more popular song put it - to "say it with music."
For his emotion-toned experience is contrapuntal .... Since the trial
judge is not, then, engaged in a wholly logical enterprise, the effort to
squeeze his "hunch," his wordless rationality, into a logical verbal form
must distort it, deform it. His ineffable intuition cannot be wholly set
down in an R and an F. There are overtones inexpressible in words. He has
come upon non-logical truth. 1
The analogy to music suggested to Frank another prop for his
argument. Most judges would deny the allegation that they
legislate in their decision-making, for this would be a violation of
our sacred separation of powers doctrine. Frank feels that it is
impossible for a judge to completely avoid statutory interpre-
tation at some stage of the judicial process.
The legislature is like a composer. It cannot help itself. It must leave
interpretation to others, principally to the courts.
Yet most of our "common law" is judge-made. When judges modify a

common-law rule, by expansion or contraction, they continue this process
of legislation. They do so also when they apply such a rule to a set of facts
of a kind to which that rule has not previously been applied. That holds
true when the rule was enacted by the legislature. For, in so doing, they
interpret the statute - and interpretation is inescapably a kind of legis-
lation .
. .. When a court applies a legal rule - statutory 01' not- to the facts ofa case,
the court must interpret not only the rule but the evidence .... For a court
nullifies a statute when the court mis-finds the facts of a case in such a way
that the statute is inapplicable. The delegated "discretion" to find the facts can,
then, become a power to prevent the operation of the legislative process. 2
In order to understand the function of the judicial "hunch,"
we must turn our attention, for the most part, to the actions of
trial courts, where the facts are initially presented and where
Frank feels the "hunch" will sooner or later take place. This
introduces another element in Frank's critique of the judge,
namely, the upper-court myth.
1 Frank, "Say It With Music," 61 Harv. L. Rell. 921,932-33 (1948). In this respect,
Frank relies heavily on the musical knowledge of Ernst Krenek and the philosophical
writings of Susanne K. Langer, especially her discussion of "linear language" and
its uses in her book, Philosophy in a New Key (N.Y.: Pelican Ed., 1948).
I Frank, "Words and Music: Some Remarks on Statutory Interpretation,"
47 Col. L. Rell. 1259, 1264, 1269, 1274, (1947).
THE UPPER-COURT MYTH AND ITS EFFECTS:

RULE-SKEPTICISM AND FACT-SKEPTICISM
In almost the entire discussion up to this point, Jerome Frank

has been concerned with the decisions of trial court judges and
juries, the vital areas of what he calls "court-house government."
The important fact-determinations are made at this level of the
judicial process, and hence, the nub of the problem is what "facts"
are discoverable at the level of the trial court ?
The school of "sociological jurisprudence" wisely noted the effects of the
social, economic, and political views of judges. But because that school
primarily studied the legal rules, and therefore, the published opinions
of upper courts, it disregarded, for the most part, the less obvious compo-
nents of judges' attitudes. 1
Within the school of American legal realism, Frank dis-

tinguishes between what he calls the rule-skeptics (such as Cardozo
and Llewellyn), who concentrate their attention on the decisions
of upper or appellate courts, and the fact-skeptics (such as Frank
and Arnold), who concentrate their attention on lower or trial
court decisions. The function of the rule-skeptic is to peer behind
the "paper rules" of legal opinions, which do not always prove
reliable as guides for the prediction of future decisions.
. . . In other words, these rule skeptics seek means for making accurate
guesses, not about decisions of trial courts, but about decisions of upper
courts where trial-court decisions are appealed. These skeptics cold-
shoulder the trial courts. Yet, in most instances, these skeptics do not
inform their readers that they are writing chiefly of upper courts. 2
Jerome Frank has a deep respect for the questioning mind of

the late Justice Cardozo, but in Frank's opinion Cardozo's
cardinal "sin" was that he concentrated on the legal rules applied
by appellate courts, and ignored the pioneering work of the trial
court judges who dealt with the facts. 3 Frank regards the work of
Cardozo and other rule-skeptics as useful and wise, but he felt that
it approached the absurd when applied to trial courts. This is
1 Frank, "Say It With Music," 61 Harv. L. Rev. 921, 938 (1948).
8 Frank, Couris on Trial 73-74. See Frank's preface to the 6th printing of Law
and the Modem Mind xiv-xv (1949); Courts on Trial, chaps. 12-13, 19, 23-24 (1949);
and It Men Were Angels, chaps 7-8 (1942).
3 See Frank, "Cardozo and the Upper-Court Myth," 13 Law and Contemp. Prob.
369 (1948).
still the principal ground for Frank's criticism of men such as

Pound, Dickinson, Llewellyn, and Morris Cohen.
The fact-skeptics also peer behind the so-called "paper rules"
of upper court decisions, but their primary interest is in the more
basic work, as they see it, of the trial courts .
. . . No matter how precise or definite may be the formal legal rules, say
these fact-skeptics, no matter what the discoverable uniformities behind
these formal rules, nevertheless, it is impossible, and will always be
impossible, because of the elusiveness of the facts on which decisions turn,
to predict future decisions in most (not all) law-suits not yet begun or not
yet tried. The fact-skeptics, thinking that therefore the pursuit of greatly
increased legal certainty is, for the most part, futile - and that its pursuit,
indeed may well work injustice - aim rather at increased judicial justice.
This group of fact-skeptics includes, among others, Dean Leon Green,
Max Radin, Thurman Arnold, William O. Douglas (now Mr. Justice
Douglas), and perhaps Professor E. M. Morgan. 1
According to this analysis by Frank, the rule-skeptics live in

an artificial two-dimensional legal world, while the legal world of
the fact-skeptics is three-dimensional and is wholly free of the old
magical tradition of the law. Frank would like to go one step
further to what he calls "four-dimensional" thinking, 2 but even
1 Frank, Courts on Trial 74. C/., "In Judge Frank's scheme of thought, 'fact·
skepticism' has never been put forward as a warrant for despair or for cynicism. On
the contrary, his writings present several optimistic proposals for the reform of
American court procedure, so that findings of fact shall become less vulnerable to
error. For in a court trial a man's life or liberty may be at stake, and an unjust
conviction puts a dreadful blot on the whole community.... " Edmond Cahn, The
Mcwal Decision; Right and Wrong in the Light 0/ American Law (Bloomington:
Indiana University Press, 1956), p. 258. See also, pp. 257-60, 263-72 for Cahn's
discussion of fact-skepticism and hearsay evidence. Cahn dedicates his book thus:
"To Judge Jerome Frank; CHAMPION OF ENGLIGHTENMENT AND OF HUMANE JUSTICE."
2 "I suggested earlier that most legal thinking is two-dimensional, that consider-
ations of trial-court processes in 'finding' the 'facts' demands three-dimensional legal
thinking. Perhaps that suggestion should be amended: The physicists now deem it
artificial to separate space and time. Using the idea of space-time, they add space as
a fourth dimension. In the same way, if we take into account the trial court's gestalt,
we should perhaps regard it as legal thinking, which requires not mere intellectual
but also artistic insights." Frank, Cou1'ts on Trial 182-83. What Frank would do
with Alfred Korzybski's "time-binding" elements in law, 1 cannot say, for Frank's
use of Krenek and Langer is still a puzzle to me. Ct. the approach of Max Rheinstein:
"What needs to be achieved is a correction or, better, a refinement, of one of the main
insights of the New Jurisprudence. We have properly been shown that the judicial
process is not an automatic one, but that it contains an inevitable element of creative
activity. That creativeness, however, is of a peculiar kind. It is not the creativeness of
free volition but that of articulation of a pre-existing standard, a standard pre-
existing in the unexpressed and inarticulated value consciousness of the community.
The formulated rules of the law do not contain solutions for every conceivable case.
The New jurisprudence is correct in holding that there are gaps in the law, but 'law'
in that connection only means the formulated, the articulated rules of the community.
legal realism is not mature enough for that kind of advanced
thinking. Instead of going to Montana to study the legal system
and the mores of the Cheyenne Indians, Frank believes that
Professor Karl Llewellyn, for example,
... By spending a few nickels on subway-fares for short trips from
Columbia Law School, where he teaches, to lower New York City, Llewel-
lyn could have studied in detail the trial courts of that metropolis. He
could then have written a book on the anthropology of Tammany-Hall
Indians, many of whom are first-rate trial judges. 1
But why is the trial court so important for the fact-skeptics?

Why is it pre-eminently at the heart of their analysis? Jerome
Frank has an answer:
For the new case a decision is in existence, hidden and unconscious, perhaps, but
indicated by those faiths, ideals, and aspirations which guide, inspire, and determine
the community, or its valentior pars. For the 'new' case a new rule must be made
by the judge, but not upon the basis of his own, individual predilections and personal
ideals, but in conformity with the value judgments of that society of which he is a
functionary. These value judgments of the community are, of course, those of the
individuals of which it is composed, and, especially, of those who are its recognized
guides and leaders. Of these individuals, the judge is one himself, and in that sense
his individual value judgments help to shape those of the community. But, as judge,
he is not to give way to them unless they have become those of the community.
As judge, he has to search for that solution which is the 'right' one in the eyes of his
society. In this sense, he has to 'find' the law. But he has also to 'make' it, since he
has to articulate the norm which has ouly been vaguely felt before. That process of
articulation is delicate and difficult, it requires skill, tact, training, craftmanship,
and above all, sensitivity. It is of a truly creative character, like that of the artist,
poet, or musician, who feels the sentiments living in his people and gives expression
to them, so that each individual can now recognize them as really his own, and make
them into a new source of strength and inspiration. Simultaneously to make and to
find the law requires self-discipline, strength, and responsibility. The judge, the
watchman of society, holds power in his hands, which he can use and abuse. No
institution can ultimately safeguard the proper use of that power. No self-deceiving
belief in judicial automatism stands any longer in the way of abuse. Religious
scruples exert but weak force in this present age of disbelief. Nothing but moral
virtue restrains the watchman." Op. cit. supra p. 76 at 602-03. This view is similar
to that of the great German legal philosopher, Eugen Ehrlich ...... It is a demand
of political prudence that the norms for decision which are prescribed to the judges
by the lawmakers conform to the value judgments held by the people whosecontrover-
sies the judges decide. History shows that such conformity exists frequently but not
always .... " Rheinstein, "Sociology of Law. Apropos Moll's Translation of Eugen
Ehrlich's Grundlegung Der S08iologie Des Rechts," 48 Int'l J. of Ethics 232, 235 (1938).
Frank, without acknowledgment of Ehrlich, Rheinstein, or even Max Weber, semi-
consciously accepts these arguments when he says that the mature judge must dis-
cover "what the society conceives to be the correct prejudices." See p. 73 supra.
1 Courls on Trial 77. Could it be that the Cheyenne Indians had something that
Professor Llewellyn could not by any stretch of the imagination find in Tammany
Hall? Isn't Frank's view somewhat short-sighted, in view of the fact that Llewellyn
made no pretense of what he was setting out to accomplish with Hoebel? Why not
accept Llewellyn's work at face-value and let the matter rest?
And now I come to a major matter, one which most non-lawyers do not
understand, and one which puts the trial courts at the heart of our judicial
system: An upper court can seldom do anything to correct a trial court's
mistaken belief about the facts. Where, as happens in most cases, the
testimony at the trial was oral, the upper court usually feels obliged to
adopt the trial court's determination of the facts. Why? Because in such
a case the trial court heard and saw the witnesses as they testified, but the
upper court did not. The upper court has only a typewritten or printed
record of the testimony. The trial court alone is in a position to interpret
the demeanor-clues, this "language without words." ... 1
Frank believes that the upper-court myth was created for the
purpose of hiding in the minds of lawyers, judges, and legal
scholars alike what actually takes place in the judicial process. It
is part of what he calls "legal magic."
Legal rules, therefore, will not suffice to control the trial courts, even if
those rules are applied conscientiously. You cannot control such courts
unless you can also control their fact-finding. But that you usually can't
do. For the process of fact-finding is altogether too subjective and, con-
sequently, too elusive. It is "un-ruly." The refusal to recognize such
unruliness constitutes modem legal magic. It stems from a "desire to be
deceived." 2
Another contemporary federal judge, Judge Charles Wyzanski,

Jr., is substantially in agreement with Frank on the importance
of the trial judge's work:
... What is the whole law of procedure but the crystallization of judicial
custom? The trial judges made the law of evidence by their usages; and
perhaps now they are unmaking it by their usages. The revocation is bid-
den by appellate courts which treat departures from the proclaimed evi-
dentiary rules not as though they represented new doctrine, but as though
they were insignificant nonreversible errors .... Let us not suppose that
because our jurisdiction is limited, because so much of our work goes
unreported, because we are immersed in the detail of fact, we trial judges
are clothed with small responsibility in relating law to justice. It is we
who make the law a living teacher as we transmit it from the legislature
and the appellate court to the citizen who stands before us. It is we who
watch the impact of the formal rule, explain its purpose to laymen,
and seek to make its application conform to the durable and reasonable
expectations of our communities. It is we who determine whether the
process of common-law growth shall decay or flower with a new vigor. 3
Julius Stone, like Max Rheinstein and Judge Wyzanski, feels
that the reaction of the community to the judge's decision is far
1 [d. at 23.
2 I d. at 61. And, like all mythical thinking, it is "childish."
8 Wyzanski, "A Trial Judge's Freedom and Responsibility," 190 Atlantic Monthly
55, 60 (July, 1952). Judge Wyzanski serves on the District Court, while Frank was
a judge on the Circuit Court of Appeals.
more important than the judge's "unconscious" drives or his
overt rationalizations of his decision. In referring to Frank's
suggested reforms (especially, the use of special findings of fact
instead of the more commonly used general verdict) in Courts on
Trial, Stone wrote:
I think that he has not, even then, quite made the final point. In the end
the question may be whether the decision on the facts is outrageous to the
moderate reasonableness of most of the community, and of the appellate
courts as representing them, rather than the relation at the decision to the
judge's subjective state at mind. It is immaterial from this aspect whether
that relation be viewed as visceral, reflex, biochemical, emotional (wish-
love or hate-fear) or in quasi-mystical Gestalt terms. Only on some such
basis can the requirement of special findings of fact be justified without
assuming that the "inescapable" can be escaped or the "un-get-able" got
at. 1
An even more fundamental distrust of any such mechanical

remedy as the requirement of special findings of fact for the
difficulties Frank finds in trial courts is illustrated in Justice
Cardozo's emphasis on the need for agreement on first principles:
... I feel profoundly that much of the criticism of courts and many of the
blunders of courts have their origin in false conceptions, or at any rate in
varying conceptions, of the limits of judicial power, the essence of the judi-
cial function, the nature of the judicial process. We may not hope to
eliminate impatience of judicial restraint, and even revolutionary en-
croachments upon the integrity of judicial power, till we settle down to
some agreement about the things that are fundamental. 2
According to Frank's argument, the upper-court myth reduces

our interest in the competence and qualifications of trial-court
judges, who are the core of so-called court-house government.
Aside from his suggestion of self-awareness, Frank is not opti-
mistic about the practical prospects of solving this problem:
1 Stone, Book Review of Courts on Trial, 63 Harv. L. Rev. 1466, 1471 (1950).
While this passage is somewhat critical of Frank, Stone recognizes the value of Frank's
work, and in particular, his illumination of the much·neglected trial-court area, the
heart of courthouse government.
2 Cardozo, The c..owth of the Law (New Haven: Yale Univ. Press, 1924), pp. 144--45.
This quotation goes some way towards indicating how far Frank failed to understand
the true basis of his own disagreement with Cardozo. Professor Earl Latham of
Amherst College, in a letter to the editor of the New York Times (Nov. I, 1948, at 22)
said nearly the same thing in commenting on criticism of the Supreme Court today.
Professor Latham said that if American society is in doubt about many of our funda-
mental ideas, how can the Supreme Court be expected to have fixed and final
answers to our most pressing prOblems? See James Reston, "A Sociological Decision;
Court Founded Its Segregation Ruling on Hearts and Minds Rather Than Laws,"
New York Times, May 18, 1954, p. 14.
It may occur to someone that the upper-court myth would become a

reality if every trial judge were required to state in writing why he believed
or disbelieved witnesses, and to give a detailed report of this demeanor; in
that way, the upper court could get rid of the subjectivity of the trial
judge's reactions to testimony. But the upper court would still not know
whether the trial judge's report was "objective." A better device would
be one I proposed in 1930: Have a "talking movie" of each trial. It would
completely reproduce the manner in which the witnesses testified, so that
the upper court judges could form their own, independent, impressions
of the trial. But these impressions would still be subjective reactions -
those of the upper-court judges. Each appeal would be but another trial
in the upper court, a cumbersome procedure. At any rate, the upper-court
judges would become trial judges, and they would then need training in
trial judging. 1
Although he urged that trial courts be required to make special

findings, and urges other technical changes, Jerome Frank pro-
fesses little respect for the procedural reformers, chiefly be-
cause he feels that procedural reform cannot solve the problem
of finding the facts, or materially improve the competence of
those who conduct trials.
Since about such matters the procedural rules are silent, the procedural
reformers err in over-emphasizing the importance of the rule-aspects of
procedure. For, as we have seen, often the "unruly" elements in the trial
process - the factors that inherently cannot be formulated in rules - play
a dominant part in producing decisions. Thus these reformers turn out to
be, not "fact-skeptics," but merely one species of "rule-skeptics." They,
too, live in a one-dimensional legal world, an artificial world in which
rules control decisions. Insufficiently bitten by "fact-skepticism," these
reformers have under-estimated the effects of trial-court "discretion"
concerning credibility. The procedural reformers are, then, in part, devo-
tees of legal magic. (From this criticism there must be excepted some of
these reformers, among them my colleague, Judge Charles E. Clark, and
Professor Morgan.) 2
Inevitably, the search for a viable solution to the problem of

court-house government ends on the word, obiectivity, but Frank
fully recognizes the impossibility of ever getting completely
objective judges. The judicial process, by its very nature, is made
up of men, fallible men, whose judgment is never a complete
reproduction of past events. No human institution could ever do
this; hence, the judicial process never can be wholly free of
1 Courts on Trial 224. Frank adds in a note: "Because of the subjective in the
witnesses' testimony, it would still be impossible to be sure of knowing the actual
past facts." 14 at 224..
• ]d. at 106-07.
subjectivity. But what it needs, according to Frank's analysis,
is a frank recognition of the limits of human knowledge, and the
techniques that the human mind uses for hiding its own fallibility.
The possibility of human error will always make the judicial
process something less than perfect.
Another trouble with court-house government is the trial-by-
combat that takes place between the competing adversaries.
Frank calls this the "fight theory" of the court room, contrasted
with the "truth theory" that ought to be pursued (what are the
facts, not what are your facts, Mr. Opposing Attorney?).
In short, the lawyer aims at victory, at winning in the fight, not at aiding
the court to discover the facts. He does not want the trial court to reach a
sound educated guess, if it is likely to be contrary to his client's interests.
Our present trial method is thus the equivalent of throwing pepper in the
eyes of a surgeon when he is performing an operation. 1
Advocacy, like trial-judging, requires special ability. As an art,

it is one of the most difficult attributes of the entire process of
finding the just answer to disputes that arise between men. This
has been underlined by the late Chief Justice Arthur T. Vander-
bilt of the New Jersey Supreme Court, who says that advocacy is
a special art that not all lawyers possess:
To learn the law of a case - given industry and intelligence - is relatively
simple, but to know the facts of case after case is indeed a life sentence to
hard labor. To master the varying stories of each of your witnesses (if they
do not vary in some degree you may well suspect perjury) and to ascertain
or to forecast the testimony of each of your adversary's witnesses and
from it all construct the facts as they will emerge in court under the
compulsion of a solemn oath to speak "the truth, the whole truth and
nothing but the truth" requires intellectual ability of a high order ...
Advocacy, very obviously, is no calling for the intellectually, physically or
morally weak. 2
The formula, R X F or R X OF (the objective facts) equals
D is never really possible in the court room situation. According
to Frank, what actually happens, what actually emerges from the
trial itself is R (rule) X SF (subjective facts) equals D (decision).
No matter how much we discuss the weaknesses of our present
trial court system, we can never ignore the inherent difficulty
that has always existed and that will continue to exist, viz.,
1 Id. at 85.
g Vanderbilt, Book Review of Lloyd Paul Stryker'S The Art of Advocacy: A Plea
F01' the Renaissance of the Trial Lawyer, New York Times Book Review, March 28,
1954, p. 3.
the search for truth on the basis of ex post facto facts. 1

Judge Bridlegoose's throw of the dice, 2 or the mechanical and
completely rationalistic jurist merely looking at a treatise or a
code for the "perfect" decision, or the judicial "hunch" alone are
not wholly acceptable to Jerome Frank. Again, his solution is the
mature judge with a mature legal mind who knows his inherent
limitations, understands "human nature," but can still act as a
judge without denying his essentially human qualities. At almost
every point of Frank's theory of law, judicial self-awareness is a
prerequisite of a more realistic appraisal of the role of the judge
in the judicial process. 3
Self-awareness will clear the judge's mind of legal magic,
especially the glib verbalizations that are now so prevalent in
written opinions. Legal rules will be accepted only for what they
are worth. Precedents will be viewed realistically:
For precedential purposes, a case, then, means only what a judge in any
later case says it means. Any case is an authoritative precedent only for
a judge who, as a result of his reflection, decides that it is authoritative ... 4
But even further than this type of self-awareness by the judge

will be the community's awareness of the judge's function in the
judicial process. The judge must be humble, conscientious, and
above all, democratic. 5 For example, after discussing the intri-
1 Several recent American cases point up the problem of judicial fact-finding.
See Milton Lehman, "Rosenberg Case: Judge Kaufman's Two Terrible Years,"
226 Sat. Eve. Post., August 8, 1953, p. 20 for a discussion of the agony of Judge
Kaufman's decision in that celebrated case, and especially the religious and political
pressures that weighed so heavily upon the judge. Also, see Charles Alan Wright,
Book Review, 35 Minn. L. Rev. 228 (1951) on the case of Alger Hiss and his famous
typewriter. Another recent example outside of the court room was the case of the
"doctored" photograph in the Secretary Stevens-Senator McCarthy congressional
hearings during April and May, 1954 in Washington.
2 In Francois Rabelais' charming Five Books 0/ the Lives, Heroic Deeds and Sayings
0/ Gargantua and His Son Pantagruel, Pantagruel says: " •... But this continuation
of Bridlegoose, for so many years, stilll hitting the nail on the head, never missing
the mark, and always judging aright by the mere throwing of the dice and the chance
thereof, is that which most astonisheth and amazeth me.' " Vol. II, chap. XLIV of
The Works 0/ Francis Rabelais, the Urquhart-Le Motteux translation, ed. by Albert
J. Nock and Catherine R. Wilson (N.Y.: Harcourt, Brace & Co., 1931), p. 585.
s See pp. 75-78, supra.
4 Courts on T,ial 279. See Frank, " 'Short of Sickness and Death': A Study of
Moral Responsibility in Legal Criticism," 26 N.Y.U.L. Rev. 545, 603-05 (1951).
I Ct. Poet Carl Sandburg's view of this matter: "Who was the twentietll century
lawyer who said of another lawyer, 'Hel has one of the most enlightened lninds of the
eigilteentllcentury'? I and why did fate put both of them on the Supreme Court bench?"
From "The People, Yes" in Sandburg, Complete Poems (N.Y.: Harcourt, Brace and
Company, 1950), p. 552.
cate problems that contemporary Supreme Court justices must
face, Frank has this to say about the qualifications of the now
Mr. Justice Douglas:
And, since the preservation of democracy is the paramount issue of the
day, he should be an ardent lover of democracy, possessed of face-to-face
acquaintance with American democracy as a living fact expressed in the
daily lives not merely of notables but as well of our humblest citizens.
This book reveals Mr. Justice Douglas as one who meets all the require-
ments of the recipe. 1
Unfrock the judges! cries Jerome Frank, and then we can bare
judicial reality to the public.
The judge's vestments are historically connected with the deplorable desire
to thwart democracy by means of the courts ....
The courts should feel obligated to make themselves intelligible to the man
on the street or in the subway. Unfrock the judge, have him dress like
ordinary men, become in appearance like his fellows, and he may well be
more inclined to talk and write more comprehensibly. Plain dress may
encourage plain speaking. 2
Once the judge is unfrocked, exposed, and wriggling before the

public, like T. S. Eliot's Prufrock, he will be a new man. His
divinity, as well as his paternalistic position in the community,
1 Frank, Book Review of Douglas' Democf"acy and Finance, 54 Harv. L. Rev.

905,906-07 (1941). In my opinion, this sounds like a lot of gibberish, since the choice
of Supreme Court justices is not based on the same criteria as a Fair Employment
Practices Commission might use in its work. Cf.: "The Supreme Court will undoubted-
ly preserve much of its present character, but the philosophy behind its work will
be substantially changed. The new jurisprudence has already discovered that its
function is not that of accurately classifying cases which come before it in their ap-
propriate conceptual pigeonholes. More and more we are realizing that this great
tribunal possesses broad political powers. The court must recognize the dynamic
character of our civilization. It may not thwart the inevitable process of change and
progress, but it must insure that this change and progress assume an orderly and
consistent form, that reasonable respect for traditional values and for the experience
of the past operate to modify the impulses for radical reform. The function of the
Court will become less that of a formal judicial tribunal and more that of a board of
political censors, an agency removed from the swirl of practical politiCS, unaffected
by the pressure of immediate events, and thus in a position to exercise essential
controls in the interest of continuity and adequate deliberation." Walter J. Shepard,
"Democracy in Transition," 29 Am. Pol. Sci. Rev. 1, 17 (1935).
8 Frank, "The Cult of the Robe," 28 Sat. Rev. 01 Lit, October 13, 1945, pp. 12,80.
(This was published in expanded form under the same title in Courls on Trial 254-61).
And what, I ask in all fairness, will "plain speaking" accomplish in respect to the
problem of the judge's decision-making function? Isn't this somewhat naive, con·
sidering the level at which Frank attacked the problem of judicial fact-finding in
some of his other writings, above-mentioned? See " 'The Cult of the Robe': Two
Concepts of Our Court," 32 A.B.A.]. 564-67 (1946). Frank's term of opprobrium
is "robe-ism," which covers a multitude of sins in the judges.
will have been denuded, and he will emerge as a completely un-

pretentious legal functionary in the best democratic sense.
The concept of governmental guardians cannot be reconciled with the
basic concept of a democracy. We have rejected hereditary father-rulers ..
In recent years, the Supreme Court has boldly abandoned the papa role.
The justices have openly acknowledged their human fallibilities, have
discarded the "opportune lie" that judges possess some sort of semi-
divinity. This new democratic attitude has distressed the followers of
Plato among us, partly because they are afraid to grow up, partly because
they lack faith in the capacity of their fellow Americans to achieve
maturity, to become responsible members of a democratic society. But
the Court has set a splendid example. Let all our other governmental
officials follow it. Then, democratically, we can become self-guardians. 1
Justice Oliver Wendell Holmes and Judge Learned Hand are

the prototypes of the kind of mature judge that Frank is searching
for. He saw Holmes as freeing American jurisprudence from its
reliance on black-letter law and its slavish worship of history and
tradition ("It is revolting to have no better reason for a rule oflaw
than that so it was laid down in the time of Henry IV"). History,
for Justice Holmes, is chiefly valuable for the light it can throw
on the present. ("A page of history is worth a volume of logic").
If, according to Holmes, a theory of law should fit the facts,
the problem of finding the facts still remains. The touchstone of
Holmes' life and of his work is the element of courage. To Frank,
as it was to Holmes, life is a constant challenge, physically as well
as intellectually.
In Judge Hand, Frank saw another man who has the courage
of his beliefs and in whom he found in a supreme degree the quality
of wisdom. He is, for Frank, "our wisest judge" because he is
fully aware of his limitations as a man and as a judge. He is as
explicit and as honest a jurist as could be humanly possible in a
system such as our own.
Courage and wisdom are values. As Felix Cohen, Roscoe
Pound, and Max Rheinstein have all so clearly said, the element
of values, of the moral components of the legal order, are always
uppermost in the picture that we have of the judicial process
1 Frank, "Self-Guardianship and Democracy," editorial in 16 Amet"ican Scholar
265,266-67 (1947). I'm not sure how Frank jumped from more accurate fact-finding
to judicial self-awareness and then to democracy, but this type of intellectual and
philosophical hocus-pocus is more akin to Frank's approach to law than it is to others.
In my opinion, the issue of democracy had no place in the discussion, certainly not
at this point.
after the problem of fact-finding is disposed of. For Jerome

Frank, the pendulum is swinging away from the worship of paper
rules, mechanically chosen, to men, especially men who can be
trusted in a democratic society.
The final hope for democracy must be, not in its letter law, but in its leader-
ship. The day must come when the people's trust must be less in law and
more in men. In the last analysis, the main test that will determine the
survival of democracy will be its capacity for the wise selection of men -
men sufficient in character and wisdom to be trusted with the powers of
the State. 1
METAPHYSICAL QUESTIONS
But whenever the argument over law and men arises, the in-
evitable question, from the democratic point of view, is "who
watches the watchmen?" What values should they possess?
Again, I must return to Pound, Morris and Felix Cohen, and
Rheinstein, to the problem of law and of men, of rule and of
discretion, 2 of fixity and of change, of social solidarity and of
individualization. Though Frank has exploded a set of legal
myths, he has not answered the really formidable questions, the
metaphysical ones. (Of course, Frank would say that these are the
1 From an article by George Alger, as quoted in Frank, Courts on Trial 408-09.
C/.: "A government is as good as the men who operate it, and no better. To obscure
that fact is to foster corruprion, stupidity, and inefficiency in government. No more
deadly obscuring agent has ever been devised than the slogan that we have, and
should have, a government of laws and not of men. And at the core of the vice of
that slogan is that fatally ambigious word 'law.' ... Government is what it does. It
consists of the acts of human beings. It does not consists of inert entities known as
laws, but of human activities - activities ot the men who at the moment constitute
the government." Frank, "Realistic Reflections on Law as a Constructive Social
Force," in the Proceedings 0/ the National Conjerence oj Social Work 326 (1933). This
argument is somewhat illogical, because laws that are made by human beings (men)
are part of what Frank calls "human activities." A truly "realistic" view of govern-
ment would have to include laws and men.
2 For a discussion of these problems, see Charles E. Wyzanski, Jr., "A Trial Judge's
Freedom and Responsibility," 65 Harv. L. Rev. 1281 (1952) and Felix Frankfurter,
"Some Observations on the Nature of the Judicial Process of Supreme Court Liti-
gation," 98 Proc. Am. Philos. Soc'y 233 (Aug. 16, 1954), repro in adaptation form as
"The Job of a Supreme Court Justice," The New York Times Magazine, November
28, 1954, p. 14. Part of Justice Frankfurter's final paragraph is very fitting: " ... But
judges cannot leave such contradiction between two conflicting 'truths' as 'part of
the mystery of things.' They have to adjudicate. If the conflict cannot be resolved,
the task of the Court is to arrive at an accommodation of the contending claims. This
is the core of the difficulties and misunderstandings about the judicial process. This,
for any conscientious judge, is the agony of his duty." (p. 239). See the provocative
article by Federal Judge Leon R. Yankwich: "The Art of Being a Judge," 105
U. Pa. L. Rev. 374 (1957).
questions that do not concern a "legal realist" of his definition).

An exaggerated reliance on men rather than on rules is no full
solution, certainly not if the past three decades of European
history is read with any insight. The experience of totalitarian
regimes suggests that replacing a rule of law by reliance on human
leadership only invites another form of disaster. 1
As Morris Cohen has so aptly said, the main questions have
been side-stepped by Jerome Frank. Although he has probed
deeply and conscientiously into the very vitals of the court room
process, he has left himself in a state of limbo, and like Eliot's
J. Alfred Prufrock, his love song is really no love song at all. It is
really the swan song of a man in need.
1 John Dickinson, a persistent critic of the realist assumption that certainty is

merely a deceptive illusion, describes their nihilism in this fashion: "Law is simply
whatever government does; it, therefore, necessarily ceases to be a guide for or
limitation upon governmental action and becomes only another name for what has
hereto been called government without law." Dickinson in My Philosophy of Law;
Credos of Sizteen American Scholars, published under the direction of the Julius
Rosenthal Foundation of Northwestern University (Boston: Boston Law Book
Company, 1941), p. 98. See the discussion of Dickinson in Reuschlein, Jurisprudence-
Its American Prophets 347-50 (1951).
CHAPTER FIVE
Trial by Jury and the Problem

of Legal Education
... I must say that as a litigant I should dread
a lawsuit beyond almost anything short of sick-
ness and death.
JUDGE LEARNED HAND 1
1 Learned Hand, "The Deficiencies of Trials to Reach

the Heart of the Matter," N.Y. City Bar Ass'n, 3
Lectures on Legal Topics 89, 105 (1926).
As one who professed to be a thorough-going democrat, Jerome
Frank had a respect for the historical basis of trial by jury, but as
a lawyer and later a judge, he found the jury system not only a
grossly inefficient system of finding the facts, but also a system
that has dangerously outgrown its original functions.
In most jury cases, then, the jury determines not the "facts" but the
legal rights and obligations of the parties to the suit. For the judgment
of the court follows the general verdict of the jury, so that the verdict,
since it produces a judgment which determined the respective rights and
obligations, decides the law of the particular case. But this decision is
made by persons with little understanding of the pre-existing "rules of
law" and scant will to adhere to or employ these rules even so far as they
are comprehended. 1
This usurpation of the powers of the judge by the jury is
termed "surreptitious" by Frank, who finds this sleight-of-hand
technique another example of the negation of the myth of legal
certainty.
The general-verdict jury-trial, in practice, negates that which the dogma
of precise legal predictability maintains to be the nature of law. A better
instrument could scarcely be imagined for achieving uncertainty, capri-
ciousness, lack of uniformity, disregard of former decisions - utter un-
predictability .... 2
Buy why have men who craved for certainty allowed this
craving to be placed in the hands of twelve men who are incapable
of even approaching this ideal? The answer lies in the desire for
father-authority and the basic legal myth:
1 Frank, Law and the M adem Mind 172 (1930). In a note on the same page, Frank
adds: "In criminal cases the verdict, if for the accused, is conclusive and, therefore,
there should be little doubt that the jury, in such cases, decides the law."
2 [d. at 172.
For while men want the law to be father-like, aloof, stem, coldly im-
partial, they also want it to be flexible, understanding, humanized. The
judges too emphatically announce that they are serving the first of these
wants. The public takes the judges seriously, assumes that the judges
will apply hard-and-fast law to human facts, and turns to the jury for
relief from such dehumanized justice .
. . . The result is that, to preserve the self-delusion of legal fixity, cer-

tainty and impartiality, in many cases we hand over the determination
of legal rights and liabilities to the whims of twelve men casually gathered
together. Seeking to escape judge-made law, we have evolved jury-made
law. 1
This "jury-made" law is not the same as judge-made law. It is a

unique type of law, according to Frank's description.
Jury-made law, as compared with judge-made law, is peculiar in form.
It does not issue general pronouncements. You will not find it set forth
in the law reports or in text-books. It does not become embodied in a
series of precedents. It is nowhere codified. For each jury makes its own
law in each case with little or no knowledge of or reference to what has
been done before or regard to what will be done thereafter in similar cases.
Yet jury law, although not referred to as law, is real law none the less.
If all cases were general-verdict jury cases and if judges directed a verdict,
the law of all decided cases would be jury law. 2
According to Frank, the results of this phenomenon, for the

legal system, as well as for the social order that is being deceived
by this process of jury-made law, are harmful and dangerous.
The demand for an impossible legal stability, resulting from an infantile
longing to find a father-substitute in the law, thus actually leads, in the
use of the jury, to a capriciousness that is unnecessary and socially harm-
ful.
The jury, then, are hopelessly incompetent as fact-finders. It is possible

by training, to improve the ability of our judges to pass upon facts more
objectively. But no one can be fatuous enough to believe that the entire
community can be so educated that a crowd of twelve men chosen at
random can do, even moderately well, what painstaking judges now find
it difficult to do. It follows that the use of fact-verdicts, while it may
slightly reduce the evils of the jury system, cannot eliminate them. The
jury makes the orderly administration of justice virtually impossible. 3
1 [d. at 175, 177.

• [d., note at 174.
8 [d. at 178, 180-81. In a note, Frank adds: "Sunderland, who urges the use of
fact verdicts, admits that they would merely palliate the fundamental difficulty."
[d. at 181. Recently, sociologist Dr. Harry E. Barnes told an audience of teachers
that jury justice is "like the flip of a coin" and suggested that a panel of experts
replace juries in trials. "It is one of the most harmful, most universally accepted and
never criticized abuses of our legal system," he said, "and yet it is really the most
TRIAL BY JURY AND LEGAL EDUCATION 97
These are harsh words of dispraise for the jury system; yet
Jerome Frank was not a man without pity in his heart, especially
for the jurors in this inadequate system of administering justice.
Are jurors to blame when they decide cases in the ways I've described?
I think not. In the first place, often they cannot understand what the
judge tells them about the legal rules. To comprehend the meaning of
many a legal rule requires special training. It is inconceivable that a
body of twelve ordinary men, casually gathered together for a few days
could, merely from listening to the instructions of the judge, gain the
knowledge necessary to grasp the true import of the judge's words. For
these words have often acquired their meaning as the result of hundreds
of years of professional disputation in the courts. The jurors usually are
as unlikely to get the meaning of those words as if they were spoken in
Chinese, Sanskrit, or Choctaw. "Can anything be more fatuous," queries
Sunderland, "than the expectation that the law which the judge so care-
fully, learnedly and laboriously expounds to the laymen in the jury box
becomes operative in their minds in true form" ? ... 1
But sympathy for the role that jurors are forced to play does
not exonerate the jury system from its inherent defects, which are
numerous. They are present, nonetheless, and Frank feels a strong
need for exposing these defects to public scrutiny and for sug-
gesting reforms. The harm done by such a system is too serious
to ignore in an age such as the present one.
The jury system, praised because, in its origins, it was apparently a
bulwark against an arbitrary tyrannical executive, is today the quintes-
sence of governmental arbitrariness. The jury system almost completely
wipes out the principle of "equality before the law" which the "suprem-
acy of law" and the "reign of law" symbolizes - and does so, too, at
the expense of justice, which requires fairness and competence in finding
the facts in specific cases. If anywhere we have a "government of men,"
in the worst sense of that phrase, it is in the operations of the jury system.
If we want juries to act as legislators, we should tell them so. Instead,

we have the judgee tell them the exact opposite .... 2
inadequate method of ascertaining guilt." He further suggested that the substitute

for a panel should include such specialists in human behavior as physicians, psychi-
atrists, psychologists, and social workers. As quoted in the St. Louis Post-Dispatch,
January 13, 1957, p. 15A. This would be a far more radical revision (if not replace-
ment of) the jury system than even Frank suggested.
1 Courts on Trial 116 (1949).
2 Id. at 132, 133. To Frank, who has been a staunch opponent of this type of
"government of laws," the opposite phenomenon, in this case at least, is equally
undesirable in his theory of democracy. See the preface to the sixth printing of Law
and the Modern Mind xxiii (1949); If Men Were Angels 9, 190-211 (1942); Courts on
Trial 405-06 (1949).
MAJOR DEFECTS OF THE JURY SYSTEM
The essential defects in the jury system, according to Frank's

analysis of the problem, are: usurpation of the judge's function of
rule-making; inefficiency and incompetence in finding the facts;
an exaggerated sense of a "government of men" in their usur-
pation of legislative functions; and the preservation of the worst
elements of court-house government.
I have told you of the excessive fighting spirit in trials which still un-
fortunately dominates too much of court-house government, and which
prevents needed improvement in court-room fact-finding. The jury helps
to keep alive this fight-theory. More than anything else in the judicial
system, the jury blocks the road to better ways of finding the facts. 1
Perjured evidence is one of the major problems that Frank

feels ought to be seriously considered in any proposed jury reform,
for juries "discover" the facts principally on the basis of what
they hear and see in the court room. How can this type of evi-
dence be reduced or perhaps even eliminated from the trial process?
Jerome Frank suggests two devices: pre-trial investigation and
procurement of evidence by impartial government officials for
presentation to the trial court (similar to the type used by adminis-
trative agencies such as the Securities and Exchange Com-
mission) ; and special findings of fact by the judge himself. The first
suggestion irked many of Frank's critics, including Federal Judge
John C. Knox, who wrote:
Unfortunately, neither Judge Frank nor I can give any figure for the
amount of perjury there actually is, and I certainly agree there is too
much. But I myself am entirely convinced that perjury plays a vastly
less important part in our trials than does the inaccurate testimony offered
by completely honest witnesses. 2
Insofar as special findings of fact are concerned, even Frank is

dubious of the practical value of his own suggestion:
1 fd. at 138.
S Knox, "Just Justice," 216 Sat. Eve. Post 22, July 24, 1943, p. 72. This article
was written as an answer to Frank's "White Collar Justice," 216 ttl. at 22, July 17,
1943. Justice according to Frank's formula did not please his critic, Judge Knox,
who went on to severely criticize Frank's suggestion of pre-trial procurement of
evidence as a dangerous administrative inroad on our legal system that might do
more harm than good. See Frank, Courts on TrW 97-99 and ct., Leon R. Yankwich,
"Crystallization of Issues by Pretrial: A Judge's View," 58 Col. L. Rev. 470 (1958).
Nevertheless, to require the trial judge to make and publish his findings
of fact will yield no panacea where, because of a conflict in the oral testi-
mony, the credibility of witnesses becomes crucial. Frustration of the
purpose of the requirement occurs where, as too often happens, the judge
uncritically adopts the findings drafted by the lawyer for the winning
side. For then the judge may ostensibly make a finding of some facts of
which - although they are based on some testimony - the judge never
thought, and which, had he done his own job, he would not have included;
in that event, his finding does not represent any real inference he drew
from the evidence - does not reflect his own actual views concerning the
witnesses' credibility. With conscientious trial judges, however, the
difficulty is not insurmountable. l
Not only is the witnesses' credibility of importance to the judge
and the jury, but the manner in which evidence is presented by
the witnesses is sometimes a crucial part of the process of finding
the facts. 2
SUGGESTED REFORM OF THE JURY SYSTEM
As a result of these many defects in the jury system, Jerome

Frank, in another article, recommended the following reforms:
For the truth is that, in general, the courts don't want to know, and won't
permit themselves to learn, how juries reach their verdicts .... To sum
up, here are the reforms I think would improve our jury system:
(1) Use "special" or "fact" verdicts in most cases.
(2) Have the judge, at the trial's beginning, roughly outline the issues
for the jurors.
(3) Let the jurors take with them to the jury room a transcript of the
evidence and of the judge's charge.
(4) Supply the jury with an expert's report of complicated facts.
(5) Employ, in many cases, "special juries" composed of jurors having
a knowledge of the customs of the trade involved.
1 Courts on Trial 185. This was written sixteen years after the Saturday Evening
Post article mentioned above, and perhaps represents a view that benefited from these
years spent on the Federal Bench. Frank continued: "But a graver difficulty remains:
the facts, as 'found,' can never be known to be the same as the actual past facts -
as what (adapting Kant's phrase) may be termed the 'facts in themselves.' How
closely the judge's 'findings' approximate those actual facts he can never be sure -
nor can anyone else." [d. at 185.
2 The New York Times carried an article which included a statement by Charles
C. McCloskey, Jr., Sheriff of Chautauqua County and a former special agent with
the Federal Bureau of Investigation, advising law enforcement officers who have to
take the witness stand always to give strictly factual answers and never to volunteer
information either for the prosecution or the defense. "A good case may be destroyed
by a single bad impression given to the jury," he said. "The juror is a human being,
subject to the same feelings as you. He may not like the way you part your hair or
the way you walk into court, even though your manner is strictly proper." McCloskey
also urged law enforcement officers "to be natural" as witnesses and to remember
that their role is "to collect the facts and then present them in court impartially."
New York Times, August 5, 1953, p. 32.
(6) Strictly enforce the ban against jurors who have defective hearing
or eyesight or who are physically or mentally ill.
(7) Require all prospective jurors to take a detailed course of study deal-
ing with the function of juries.
(8) Eliminate many of the "exclusionary" evidence rules.
(9) Discourage publication, in the press or on the air, of anything but
straight reporting of the courtroom evidence in a jury trial, until the
case ends.
Although trial by jury can be improved, in my opinion it will remain
the weakest spot in our judicial system - reform it as we may. But the
judges (like me) who want to see the civil jury abolished and the use
of the criminal jury limited, will, of course, as long as the jury system
endures, comply with their oaths of office and strive to make the jury
system work as best it can. I
Some of these suggestions have found approval in other

quarters. Judge Charles Wyzanski, Jr., for instance, has written:
Indeed, except for tort cases, I find myself in agreement with Judge
Frank that the trial judge ought to use special verdicts to a much larger
extent, though it is more difficult than may at first be realized to frame
questions to the satisfaction of counsel and to the comprehension of
juries. 2
While some members of the bar and bench might regard Frank's
suggestions for jury reform as "extreme," there has been a feeling
in recent years that the jury system needs some overhauling and
improvement. The myth of its "sanctity" is, however, still very
strong, as the reactions to the University of Chicago Law School
study of the jury so well proved. 3
Another member of the profession, Judge Curtis Bok of Phila-
1 "Something's Wrong With Our Jury System," 126 Colliers, Dec. 9, 1950, pp.
29, 66. With all of the fire of a Judge Frank, United States District Judge Louis E.
Goodman answered Frank in an article, "In Defense of Our Jury System," 127 Col-
liers, April 21, 1951, p. 24. Frank did not reply in kind. Ct. Frank: "Our complicated
and cumbersome rules of evidence could be simplified immeasurably if we did away
with the jury. The hearsay rule, for instance, is largely due to the mistrust of the
jury's competence to weigh evidence." Law and the Model'n Mind, note at 185. This
statement was written in 1930. Frank's ninth point of his suggested reforms or varia-
tions of it, has been an extremely controversial issue at all levels of our judicial system
in recent years. In respect to "trial by newspapers," see Shepherd v. F1Mida, 341 U.S.
50 (1951), especially Justice jackson's concurring opinion; Stroble v. Cali/Mnia,
343 U.S. 181 (1952), and MOor'e v. Dempsey, 261 U.S. 86 (1923) and the following
notes, "Due Process For Whom - Newspaper or Defendant," 4 Stan L. Rev. 101
(1951), and "Freedom of the Press - A Menace to Justice," 37 Iowa L. Rev. 249 (1952).
a Wyzanski, "A Trial Judge's Freedom and Responsibility," 190 Atlantic Monthly
55,57 (July, 1952). See Frank, "The Case For The Special Verdict," 32 J. Am. Jud.
Soc'y 142 (1949); Julius Stone, Book Review, Courts on Trial, 63 Harv. L. Rev. 1466,
1471 (1950).
3 See p. 105 n. 2, infra.
delphia, is more humble than Judge Frank in his criticism of the
jury system in America:
The jury system is not necessarily a bad system. If it fails, it will be
because it is worked at less than top capacity and intensity, which is
the reason most things fail. Even so, it might no longer be considered
flexible enough to fill the bill. In that event, legal solutions will be left
to judges or to fixed administrative tribunals; but whatever happens,
the social fabric will not be rent asunder. Thus far no better guaranteed
method has been found than a verdict by a jury of the vicinage. l
THE CONVICTION OF INNOCENT MEN
Jerome Frank's deep distrust of trial by jury is best reflected

in his last book Not Guilty, 2 which vividly describes 36 actual
cases of innocent men who were found guilty, imprisoned, and
later freed by judicial or executive action. 3
The causes of these miscarriages of justice are varied and com-
plex, and they include many of Frank's previous criticisms of the
jury system: misidentification of the accused; the use of perjured
evidence; overzealous, at times, unscrupulous prosecutors far
more interested in conviction at any cost than in the discovery of
the truth; extorted or false confessions and the use of the in-
famous third degree; and the use of poor defense tactics, due
mainly to the inability of the defendant to hire a good lawyer
capable of conducting an effective defense. 4
Like Edwin M. Borchard, in his classic work, Convicting the
Innocent (1932), Frank hopes that an aroused public opinion will
search for solutions to the problem of criminal justice by a recog-
1 "The Jury System in America," 278 Annals 92, 96 (May, 1953). The earlier
Jerome Frank would have vehemently stressed the point that the jury system was
able to achieve plasticity and flexibility, but only by circumvention if its original
aims. But after thirteen years on the Federal Bench, Judge Frank is still critical of
the jury system. but also more practical in his basic analysis of the jury. Unlike his
earlier criticism, he is no longer content with a complete defloration of the system,
but recognizes the human elements in the picture, and the necessity for practical
solutions.
a Written in collaboration with his daughter, Barbara Frank, and published
posthumously (N.Y.: Doubleady and Company, 1957).
8 "If the conviction of an innocent man were as rare as a death from bubonic
plague in the United States, we could afford to mourn the tragedy briefly and turn
back to everyday affairs. Unfortunately such convictions are by no means so rare."
Frank and Frank, Not Guilty 31 (1957).
4 "The point is that a defendant's right to assistance by counsel is worthless unless
it signifies assistance by a lawyer capable of conducting a competent defense .... "
rd. at 85.
nition of the essentially human factors that are involved.

" ... A man in prison when he should not be there is brother to
us alL ... "! And like Borchard, Frank advocates some kind of
system of restitution or indemnity for those who suffer from the
errors of judges and juries.
Indigence as a cause of injustice can be just as damaging as a
dishonest prosecutor, a perjured witness, or a shoddy lawyer.
Judicial injustice remains injustice whatever its cause. When a man,
solely because of insufficient funds, goes to the penitentiary, he suffers
injustice, although the judge who presided at his trial is impeccably
honest, indubitably intelligent and fair, the prosecutor decent and humane,
the jury careful and impartiai.2
Throughout his career as a lawyer, administrator, and judge,

Frank was acutely aware of the inherent difficulty of finding the
"facts," the "truth" as it were, from the mouths of witnesses. He
was especially concerned with the problems of mistaken memory
or observation, unconscious or hidden prejudices, in short, the
human fallibility that is always present in trying to reconstruct a
past event or occurrence and to do so with the utmost candor and
integrity. 3
As a lawyer and later judge, Frank loathed the ruthless police-
man as well as the ruthless prosecutor, and particularly the third
degree.
Repeated and unredressed attacks on the constitutional liberties of
the humble tend to destroy the foundations supporting the constitution-
al liberties of everyone. The test of the moral quality of a civilization is
its treatment of the weak and the powerless. 4
But public awareness of the defects of our criminal law system

is not enough, as Frank knew from his long experience with the
law. Righteous indignation must be accompanied by specific
suggestions for reform, and these he included in his last book.
Many are suggestive of changes that he called for in his previous
writings: rid the courtroom of the "fight theory" of trial and
1 [d. at 38.
2 [d. at 87. Ct. the work of Arnold S. Trebach, "The Indigent Defendant,"
11 Rutgers L. Rev. 487 (1957), and "A Modern Defender System for New Jersey,"
12 Rutgers L. Rev. 289 (1957).
3 Frank describes this beautifully: "For the ordinary witness, then, it is not true
that a fact is a fact is a fact." [d. at 203.
4 [d. at 183.
replace it with a type of hearing that more accurately and dis-

passionately attempts to find the facts (e.g., some of our juvenile
and domestic-relations courts); systematically train policemen
not only in modern crime detection, but also in how to protect
the civil rights of every person; use a more intelligent system of
selecting and training prosecutors; and probably most signifi-
cant, revise the rules of evidence .
... If we want criminal trials to reveal the truth as far as is humanly
possible, to bring about the acquittal of innocent persons and not to
remain a sporting adventure, we will fall into line with all other civilized
countries in giving the accused full advance knowledge of the evidence
the government intends to introduce at his trial. 1
Although Frank found serious defects and even dangers in the ad-
ministration of criminal justice, he found that" ... By and large
our system works justly.... " 2 But we cannot remain indifferent
simply because the system works most of the time .
. . . Perhaps, someday, the conviction of a man for a crime he did not
commit will be as rare as a death by a falling meteorite. But surely not
if we ignore the problem or remain content with talking about it occasion~
ally. Nor can we hope to get rid of it by "passing a law"; no law will legislate
human errors or vicious motives out of existence. The solution of the
problem, so far as it can be solved, requires an aroused public interest
that will evoke the best possible thinking and the most arduous e£forts.3
Frank ends his last book with a strong note of warning, sug-
gestive of his opposition to capital punishment:
... We dare not assume - at least without some major reforms of our
methods of administering justice - that all innocent men will be safe from
imprisonment or the death chair. 4
In its own modest way, Not Guilty takes its place alongside
the work of Beccaria, Bentham, and others in previous centuries
who sought ways of making the judicial system a more compas-
sionate and humane instrument of the ends of justice.
lId. at 245. This was written before the Supreme Court's opinion in the contro-
versial Jencks case in 1957, and is a continuation of Frank's long advocacy of pre-trial
investigation, "discovery," and other modern fact-finding devices, traceable to a
large extent to his experience with the Securities and Exchange Commission, 1937-
1941.
2 Id. at 249.
8 Id. at 37-38. C/., Roscoe Pound, "The Causes of Popular Dissatisfaction With
the Administration of Justice," 8 Baylor L. Ref). 1 (1956), a reprinting with a new
introduction of his famous 1906 address, which was published in 40 Am. L. Ref).
729 (1906).
4 Id. at 249.
JURY VERDICTS AND THE PROBLEM OF CADI-JUSTICE
Proposals for the improvement of the administration of justice

usually include reforms in the field of jury verdicts. Jerome Frank
believes that the best suggestion is still the special (or fact)
verdict, where the jury reports its specific findings on specified
issues of fact to the judge, who then applies the appropriate legal
rule. Of course, this does not eliminate the possibility of perjured
evidence, or the fallible elements of the human mind, whether it
be the judge's or the jurors'. But at least the false appearance
that a jury gives of finding the facts can be partially alleviated.
Perhaps next to the special verdict, Frank would regard the most
important element in jury reform that is practical and feasible at
the present time to be the training of future jurors. Yet, regard-
less of the kind or the degree of jury reform, Frank does not
believe it is possible to establish a perfectly desirable jury system,
short of its total abolition. 1 The "perfect jury" is an impossibili-
ty, in view of the limitations of the human mind (especially
memory), and the circumstances that surround any type of ju-
dicial trial. 2
Jerome Frank characterizes the jury system in America as the
Cadi system of justice at its maximum and its worst. By Cadi-
justice, he means the use of one man or a group of men serving as
both fact-finder and witness-audience; the term Cadi derives from
Islamic practice. 3 The Cadi element in our present jury system,
1 "Were all those reforms adopted, trials by jury would be less dangerous to
litigants than they now are; but I think they would still be far less desirable than
jury-less trials before well trained honest trial judges." Frank, Courts on Trial 145.
Desirability is one thing and practicality quite another; Jerome Frank as iudge
realized the limitations under which he labored, although the jury was not one of
them, for Judge Frank was an appellate judge.
2 Ct., the story related by Governor Goodwin J. Knight of Califoruia on the
"perfect jury": ..... It seems that a judge got tired of the hemming and hawing that
a jury of laymen was likely to engage in; so he drew up a panel of twelve lawyers.
Being experienced in the law and in logic, they would surely get to the point imme-
diately and return an intelligent verdict in record time. However, the jury, once it
had heard all the evidence in the case and retired to ponder it, was out for an extra-
ordinarily long time. Finally a bailiff came in from the jury room. The judge asked
eagerly, 'Have they reached a verdict yet?' 'Reached a verdict?' said the bailiff.
'They haven't finished yet with the nominating speeches for foreman.' ... " Ernest
Havemann, "California's 'Excellency' Excels at Jokes as Well as Politics," 36 Lite,
Mar. 29, 1954, p. 118.
a The Problem of "Cadi-justice" and the "Cadi" elements in both the judge and
the jury is thoroughly discussed in Frank, "Are Judges Human?" 80 U. Pa. L. Rev.
in the opinion of Frank, would be impossible to eliminate. All
that we can do is to be more aware of Cadi-justice as it really
operates in courthouse government, understand its true nature,
use it more efficiently and, if and where possible, improve it. 1
Perhaps, if there is any viable solution or even partial solution
to the problem of the jury system as it now exists, that solution
will be found in education, whether it be of the jurors, the judge,
and/or the lawyers. While training jurors would be a short-term
process, the training of lawyers and future judges is a much more
complicated and difficult task. Invariably, Jerome Frank's quest
for legal reform ends on a note of cautious optimism. But only
when the "myth" of trial by jury and its results are fully under-
stood and eradicated in the public mind can the real job of jury
reform begin. 2
17,24-31 (l931). Whereas Frank regards the jury as the Cadi element in American
justice, Roscoe Pound and other leading figures in American law regard the ad-
ministrative tribunal as the best example of "Cadi-justice" in the United States. Some
of the currently bitter critics of the Supreme Court, e.g., Governor Orval Faubus of
Arkansas and former Governor James F. Byrnes of South Carolina, would probably
place that august court in the same category.
1 Ct. Max Weber: "The 'rational' interpretation of law on the basis of strictly
formal conceptions stands opposite the kind of adjudication that is primarily bound
to sacred tradition. The single case that cannot be unambiguously decided by tra-
dition is either settled by concrete 'revelation' (oracle, prophetic dicta, or ordeal -
that is, by 'charismatic' justice) or - and only these cases interest us here - by infor-
mal judgments rendered in terms of concrete ethical or other practical valuations.
This is 'Kadi-justice,' as R. Schmidt has fittingly called it. Or, formal judgments are
rendered, though not by subsumption under rational concepts, but by drawing on
'analogies' and by depending upon and interpreting concrete 'precedents.' This is
'empirical justice.' Kadi-justice knows no reasoned judgment whatever. Nor does
empirical justice of the pure type give any reason which in our sense conld be called
rational. The concrete valuational character of Kadi-justice can advance to a pro-
phetic break with all tradition. Empirical justice, on the other hand, can be sublimated
and rationalized into a 'technology.' All non-bureaucratic forms of domination display
a peculiar coexistence: on the one hand, there is a sphere of strict traditionalism,
and, on the other, a sphere of free arbitrariness and lordly grace. Therefore, com-
binations and transitional forms between these two principles are very frequent .... "
Weber, "Bureaucracy and Law" in From Max Weber: Essays in Sociology, ed. and
transl. by H. H. Gerth and C. Wright Mills (N.Y.: Oxford Univ. Press, 1946), pp.
216-17. On the "kadi" elements in the Supreme Court, see Frankfurter, J. in Termi-
nullo v. Chicago, 337 U.S. I, II (1948).
B A research project on trial by jury that has attracted much interest in the public
press and in the Senate Judiciary Committee is the University of Chicago Law School
study financed by the Ford Foundation. See Arthur Krock, "Sociological Tests in
the Jury Room," New York Times, October 14, 1955, p. 26.
THE RELATION OF
LEGAL EDUCATION TO THE JUDICIAL PROCESS
... If ever a man hid his light under a bushel it was Pound. He was like
a man walking backwards up a steep hill. For if "discretion" and "indi-
vidualization" were not law, if law was "typically" the use of rules, then
one needed to apologize for the consideration by law students and law-
yers of what is "anti-legal" or "non-legal." 1
Among the various members of the school of American legal

realism, Judge Jerome Frank has been one of the most outspoken
critics of American legal education. While some of his ideas might
seem radical or even extravagant, closer examination of his
thoughts on legal education will indicate that he has been one of
the country's most serious writers on the problem of lawyer-
training.
Most of Frank's basic ideas have emanated from his pioneer
work, Law and the M odern Mind (1930), and legal education has
not been exempted from his critical examination of what he calls
"the basic legal myth" (rule certainty).
If the legal order is replete with legal myths, why not begin the
process of attempting to reform and regenerate the judicial
process at the grass roots, viz., the system of legal education of
lawyers and judges? If reforms are needed, they must be clearly
understood and acceptable to those who have done the most to
perpetuate the legal myth of rule certainty.
American legal education has for many generations been under
the influence generated by the late Dean Christopher Columbus
Langdell of the Harvard Law School, especially his introduction
of the "case book" method of teaching law. Jerome Frank takes
great pains to blame Langdell for most of the "sins" of contempo-
rary American legal education.
American legal education went badly wrong some seventy years ago
when it was seduced by a brilliant neurotic. . .. The sole way for those
law schools to get hack on the main track is unequivocally to repudiate
Langdell's morbid repudiation of actual legal practice, to bring the
students into intimate contact with courts and lawyers. 2
1 Frank, supra p. \04 n. 3, at 19.

8 Frank" "A Plea For Lawyer-Schools,', 56 Yale L.J. 13031313 (1947).
Dean Langdell's apporach to the study of law was excessively
bibliographical, with little or no stress on the living elements in
the judicial process. Frank characterizes Langdell's approach as
"library law," law in books and books only, and having confined
itself to cases that involved decisions of upper courts for the most
part, the process of legal myth-making became a circular one.
Due to Langdell's idiosyncracies, law school law came to mean "library-law."
... The trouble with much law school teaching is that, confining its
attention to a study of upper court opinions, it is hopelessly over-simpli-
fied .
. . . Our law schools must learn from our medical schools. Law students
should be given the opportunity to see legal operations. 1
According to Frank, law students should work in legal clinics,

just as medical and dental students do. They should be given the
opportunity to practice elements of their art before their formal
legal education is finished. This would be done in conjunction with
a local legal aid clinic, which would serve the purpose (as it now
does in many law schools) of giving the student a kind of ap-
prenticeship in the law.
HOW TO IMPROVE LEGAL EDUCATION
One of the first requirements of better legal education is to put

men on the law faculty who have practiced law, so that law
schools can become lawyer-schools, and not law-teacher schools.
Book-teachers of the law can be useful, and every law school
should have them, Frank argues, but the majority of the law
faculty should consist of men with from five to ten years of
"varied experience in actual legal practice." 2 They should be
men who have practiced before trial courts, appellate courts,
administrative tribunals, but above all, outside of the law library.
1 Frank, "Why Not a Clinical Lawyer·School?" 81 U. Pa. L. Rev. 907, 908, 913,
916 (1933).
2 Frank, supl'a p. 106 n. 2, at 1313-14. The fact that the Harvard Law School has
produced many great trial lawyers, as well as jurists and law teachers, is no anomaly
to Jerome Frank, for he explains that by saying that this was the "lucky" result (or
accidental result) at a system of teaching that should have turned out differently.
Professor Edmund M. Morgan thinks most of Frank's criticisms of the Harvard Law
School are unjustified, while Professor Lon L. Fuller of the same school agrees with
Frank that there is an over·emphasis on upper courts in the law school curriculum.
lOB THE LEGAL REALISM OF JEROME N. FRANK
These teachers should be experienced practitioners of law, not

walking bibliophiles.
The crux of the matter boils down to this question: would you
want to be treated by a doctor who studied his medicine in books
and classrooms only and had no practical experience before re-
ceiving his diploma? The answer is obvious for Jerome Frank: if
a doctor can intern, so can a lawyer, at least in some form of legal
internship.
The case system of teaching law has value, if properly used and
recognized as but one technique in the educational process. 1
Instead of using the opinions_of upper courts, Frank thinks that
the complete records of a few select cases would be far more
valuable than two years spent on twenty case-books now in use.
An upper court opinion, according to Frank, is not a "case". It
is only the final and rationalized portion of the case (and actually
not even the final part, for the execution of the decision after the
opinion is handed down is also a vital part of a case).
The core of the law school I propose would be a sort of sublimated law
office. Those who attended it would learn by "doing," not merely by
reading and talking about doings. But such a school would not limit itself
to instruction in legal techniques. It would consider "strictly legal
problems" in the light supplied by the other social studies (miscalled
"social sciences") - history, ethics, economics, politics, psychology and
anthropology. Mere pre-legal courses in those fields, unconnected with
the live materials of human actions with which lawyers must cope, have
proved a failure. The integration ought to be achieved inside the law
schools .... 2
This sounds like mere advocacy of a more realistic training in

legal techniques, to the neglect of social values to be served by
these improved skills. But Frank is of course concerned about
values, too. Just as the judge should understand the psychology
1 So far as the differences in approach of the Harvard and Yale Law Schools are
concerned, the main emphasis of the Harvard method is to confine the study of
non-legal materials to the third or last year of study, whereas Yale begins with a
social science approach and mixes law study with the study of non-legal materials
throughout the three year program. Insofar as results are concerned, both schools
can claim able graduates of their respective schools of law. And even conservative
Harvard is more and more approaching the kind of program of study that Frank
recommends. And with the recent entrance of women to the Harvard Law School,
a new leaven has been added, for as Frank has mentioned on occasion, without the
female, the wisdom of the system is lost. Ct., Frank, "Women Lawyers," 119 Good
Howsekeeping, December, 1944, p. 159.
I Courts on Trial 238-39.
of human nature, the law student should understand the kind of
society that law must operate within. He must thoroughly ground
himself in the social sciences (which Frank calls "arts" or "stu-
dies"), or in what is sometimes called "the science of man." But
Frank warns against over-emphasizing the non-legal studies in
the law school curriculum. 1
There should be a happy balance between the social and legal
studies as such. But it is disturbing to find Frank introducing the
inculcation of democratic ideals and the lawyer's role of policy-
maker into the law school curriculum without any apparent
realization of the problems involved in combining teaching with
preaching.
It is a pleasure to report that many of the law schools today give marked
emphasis to the role of lawyers as policy-makers or policy-advisers, and
bring home to the students the need for embodying democratic ideals and
values in the legal rules. But a law school which really means business
about democratic ideals should interest itself mightily, as most of our
schools do not, in the problem ofthoroughly overhauling our trial methods,
and in the problem of the inability of many litigants to obtain justice
because of lack of money to meet the expense of obtaining crucial testi-
mony.2
Which democratic values should the law school inculcate in its

students? And how far must the law teacher go in transforming
his podium into a pulpit? On this matter, Frank is none too clear,
except that he fully agrees with the approach of the Yale Law
School and especially the work of Professors Lasswell and
McDougal at that institution.
Entertaining such views, of course, I thoroughly agree with those who,
like Professors Lasswell and McDougal, urge that law schools should
emphasize democratic values and ideals, and should stimulate future
1 E.g., Frank, "Both Ends Against the Middle," 100 U. Pa. L. Rev. 20 (1951),
where he discusses the two ends of the pendulum: legal rules, cases and treatises on
the one hand, and the social sciences on the other, both of which tend to "crowd"
out the middle, the realities of trial courts and court-house government.
2 Courts on T7ial 239-40. For the most part, Frank's discussion of "values" is
confined to situations where he is critical of specific "evils" in the judicial process,
e.g., the "third degree," the defects of trial by jury, or the high costs of litigation.
See Courts on T7ial 413; If Men Wue Angels 297-99; Fate and F7eedom 216-17;
"Mr. Justice Holmes and Non-Euclidean Legal Thinking," 17 C07neU L.Q. 568 (1932).
Frank feels that the legal realists are really idealists whose main concern is the im-
provement of the judicial system. However, this can be attained ouly by persistent
and intelligent examination of what constitutes legal7eality, not by any preconceived
notion of what ought to be.
lawyers to think of themselves in the role of makers of policies which

will implement such values. l
In an article by Frank, mention was made of Professor

Lasswell's suggestions for reforming legal education, including:
(1) the use of a sequence of training films on personality growth
and the dynamism of collective action for law students; and (2)
appraisal centers for the guidance and testing for the purpose of
self-understanding of those persons who want to embark on the
study of law. It is not clear whether the latter suggestion would
consist of psychoanalysis of each law student or prospective law
student, but Lasswell implies that the law student who under-
stands himself would be in a better position to understand his
clients. 2
Robert N. Hutchins, formerly President of the University of
Chicago, and prior to that, Dean of the Yale Law School, had this
to say about the kind of legal education that would best fit our
current needs:
The problem of the law schools today is therefore the problem of resolution
and synthesis. We must conserve the beneficial features of what Langdell
and his successors have done and absorb them into a sounder and more
adequate policy of legal education.
In short, legal education must consist of the study of law as it is and

operates, the study of how law came to be what it is, and the study of the
principles which must be employed to solve the problem of what the law
ought to be. Not the study of cases alone, nor the study of how the law
operates in fact, nor the study of legal philosophy will give us a legal
education. We must have all three, and in an ordered relation to one
another. Jurisprudence is the ordered relation of all these studies. 3
1 Frank, supra p. 106 n. 2, at 1323. Not long ago, Professors Clinton Rossiter and
Louis Hartz engaged in a discussion over the proper role of the teacher of American
government in the pages of the American Political Science Rewew. I am inclined to
agree with Professor Hartz that the function of the teacher is not the same as that
of the preacher or the social reformer, and I feel that his main arguments would
apply to legal education as well. See, Rossiter, "Political Science I and Political
Indoctrination," 42 A m. Pol. Sci. Rev. 542 (1948); Hartz, "Goals For Political Science:
A DisCUSSion," 45 itl. at 1001 (1951); and Rossiter's answer to Hartz in 46 itl.
at 505 (1952). See Frank, supra p. 109 n. 1, at 21.
I Frank, "Judicial Fact-Finding and Psychology," 14 Ohio St. L.J. 183, 187-88
(1953).
3 Hutchins, "Legal Education," 4 U. CM. L. Rev. 357, 364, 368 (1937). Frank
would argue that legal realists should be concerned only with what the law is (in
action), rather than what the law ought to be (legal ideals), but the distinction should
always remain a clear one, if that is at all possible. C/., Frank, "Mr. Justice Holmes
and Non-Euclidean Legal Thinking," 17 Cornell L.Q. 568 ft. (1932).
Although Jerome Frank has been a strong believer in the value
of the social sciences (nee "studies") in modern legal education, he
is certainly not the first writer to recognize the utility of such
studies. As early as 1913, William Draper Lewis was urging the
incorporation of the social sciences in legal education:
If a knowledge of the social sciences is an important part of legal education,
it is never so important a part as when the social ideas of the community
are undergoing comparatively rapid modification and change .
. .. If, therefore, I am right in the main position I am here taking, that

the important function of the judge is to adapt, within the limits and in
the way indicated, the law to existing social ideas, that function at a time
like the present cannot be properly performed unless we emphasize the
importance of the social sciences as a necessary basis of legal education ....
It is vitally important that law should express dominant social ideas.

Without a reasonable correlation between law and dominant social
ideas orderly progress is impossible. A law which does not express a
dominant social idea is worse than useless .... 1
FUSING LAW AND THE SOCIAL SCIENCES:

THE INTER-DISCIPLINARY APPROACH
A more modern (some writers feel advanced) view of the relation

between law and the allied social sciences is the inter-disciplinary
approach of sociology and anthropology. Professor Karl Llewel-
lyn of the University of Chicago Law School has been a propo-
nent of this view:
Again, the view of law-and-government as in essence a single institution
opens up at one stroke an answer to two problems which have for cen-
turies been eluding effective answer-in-words: that of the relation of
rules and discretion, and of the relation of rules and the official. In the
first place, no person who is thinking "government" along with law can
ever fall into the misconception that things get done by rules of law alone
"and not men"; instead, the picture becomes at once and of course that
of an interaction - of men acting under and within rules, and under and
1 Lewis, "The Social Sciences As the Basis of Legal Education," 61 U. Pa. L. Rev.
531, pp. 533, 538, 539 (1913). I would submit that the "Brandeis brief" would have
been a pertinent part of what Draper was calling for, since its major emphasis was
on bringing the social and economic facts before the attention of the courts. Ct. ] ames
Reston, "A Sociological Decision; Court Founded Its Segregation Ruling On Hearts
and Minds Rather Than Laws," New York Times, May 18, 1954, p. 14, for a good
discussion of the sociological implications of a Supreme Court decision in regard to
racial segregation in the public schools. Whether this particular decision approxi-
mates Draper's "social ideas" will depend to a large extent on the implementation
of the Court's holding and the long·range effects it will have on the minds and hearts
of men.
within a tradition both of goodwill and of know-how each of which is

part of what we know as "under law." ...
As between disciplines, as between persons, as between .nations: it pays

to be neighborly.l
However, Frank is dubious about the value of anthropology
and behavioristic psychology in analyzing legal behavior. Never-
theless, he does recognize the limited value of psychological
theory, though admittedly it is a tool that must be used with
caution.
However, it will not do to reason that, because the pseudo-scientific
legal behaviorists were wrong in what they affirmed, they were therefore
also wrong in what they denied, i.e., the possibility of predicting a judicial
decision through a knowledge of the legal rules which the trial judge will
probably employ in deciding any particular law-suit. 2
Although psychological legal realism might have been ex-
aggerated in its claims, and at times monistic in its approach
(especially Oliphant, Schroeder and Lasswell), it still made a
significant contribution to legal knowledge by its expose of the
non-rational factors of legal action and behavior.
Nor does the rejection of behaviorism as a legal prediction-technique
justify the scoru sometimes heaped on those who point to the numerous
non-rational factors in the decisional process. Many legal scholars, in-
1 Llewellyn, "Law and the Social Sciences - Especially Sociology," 62 Harv. L.
Rev. 1286, 1296, 1305 (1949). See Huntington Cairns, Law and the Social Sciences
(N.Y.: Harcourt, Brace, 1935), esp. chaps. II and Von anthropology and psychology,
pp.7-47, 169-219; James M. Williams, The Foundations ot Social Science; An Analy-
sis ot Their Psychological Aspects (N.Y.: Alfred Knopf, 1920), esp. Book II on "So-
cial Psychology and Jurisprudence," pp. 209-342; Morris R. Cohen, "Legal Theories
and Social Science," 25 Int'l ]. ot Ethics 469 (1915); Leon H. Keyserling, "Social
Objectives in Legal Education," 33 Col. L. Rev. 437 (1933); David Riesman, "Toward
an Anthropological Science of Law and the Legal Profession," 57 Am. ]. Soc. 121
(1951), "Some Observations on Law and Psychology," 19 U. Chi. L. Rev. 30 (1951),
"Law and Sociology: Recruitment, Training and Colleagueship," 9 Stan. L. Rev.
643 (1957), and his "Law and Social Science: A Report on Michael and Wechsler's
Classbook on Criminal Law and Administration," 50 Yale L.]. 636 (1941); Thomas
A. Cowan, "The Relation of Law to Experimental Social Science," 96 U. Pa. L. Rev.
484 (1948); Nathaniel Cantor, "Law and the Social Sciences," 16 A.B.A.]. 385 (1930).
2 Courts on Trial 161. It might be mentioned that the psychoanalytically-oriented
legal realists might also be called "pseudo-scientific." Frank fully agrees with the
viewpoint of Professor Edmond Cahn, who has recently taken the social scientists to
task (particularly the psychologists) for claiming that their findings brought about
the Supreme Court decision in the Public School Segregation Cases of 1954. See
Frank, in "The Lawyer's Role in Modern Society: A Round Table," 4 ]. Pub. L.
1,23-24 (1955), and Professor Cahn's two controversial articles, "A Dangerous Myth
in the School Segregation Cases," 30 N. Y.U.L. Rev. 150 (1955) and "The Lawyer,
the Social Psychologist, and the Truth," 31 id. at 182 (1956); ct. Jack Greenberg,
"Social Scientists Take the Stand: A Review and Appraisal of Their Testimony in
Litigation," 54 Mich. L. Rev. 953 (1956).
stead of giving serious consideration to that subject, resort to derision.
Absurdly lumping together all the non-rational, non-logical, elements,
and describing them as the "state of the judge's digestion," these scholars
often jeeringly speak of "gastronomical jurisprudence." Under the
heading of gastronomical ailments, one cannot subsume all the irration-
alities of judges .... And how can we know that many another judge,
in deciding cases, has not been affected by mental aberrations, although
less abnormal and entirely imperceptible. 1
In an earlier article,2 Frank said that the lawyer was a

practicing anthropologist, but anthropological theory as such has
some glaring weaknesses, including:
(1) It assumes that, ordinarily, as to any particular set of facts, there is a
fairly precise and knowable social norm, group habit, "non-litigious cus-
tom," or customary attitude. But that is untrue even in the most "primi-
tive" societies; it is far less true in so shifting and changing a society as
that of the U.S.A. today.
(2) In the next place, the customary attitudes or social norms do not,
in "pure" form, pass through the minds of judges. The "personalities"
of the individual judges sometimes refract and bend the mores in un-
foretellable ways .... 3
Frank believes that the anthropological thesis breaks down for

the same reason as do most legal myths, namely, the SUbjective
nature of the facts of a case.
What is more, the decision of the trial judge or jury is not the product
of an R and an F, but, as we saw, often is a gestalt, a composite, the
analysis into Rand F being somewhat artificial. However, for present
purposes, we may overlook that artificiality, since, even supposing that
the F were a distinctly separable ingredient of the decision, yet its sub-
1 Courts on Trial 161-62. Is the "state of the judge's digestion" any less derisive
than the "state of the judge's psyche"?
2 Frank, "Realism in Jurisprudence," 7 Am. L. School Rev. 1063 (1934).
3 Courts on Trial 332, 333. But Frank does not regard the lawyer as the only
practicing anthropologist: "The spirit of science employed in our national affairs
today means the maximum of attainable wisdom in the examination of our traditions
in order to determine which of these should be modified to meet present critical needs
and to foster our values - and, at the same time, to understand which of them are so
central, so precious to the great majority in our society, that to impair them will be
to invite diaster. The politician, the statesman, thus appears as a working anthropo-
logist .... " Frank, "The Scientific Spirit and Economic Dogmatism," in Science For
Democracy; Papers From the Conferences on the Scientific Spirit and Democratic
Faith 13 (Nathanson ed. 1946). It is noteworthy that Frank does not believe that the
scientific method as employed in the natural sciences can be applicable to the legal
field or to the so-called "social sciences," but he does feel that the scientific spirit of
inquiry, not the method, can be emulated. See Frank, Law and the Modern Mind
96-98,285-88; Save America First 412-13; Fate and Freedom 40-41; and "Are Judges
Human?" 80 U. Pa. L. Rev. 233, 261-64 (1931).
jective, unpredictable character would destroy the anthropological thesis,

which rests on the assumption of knowable uniformities. 1
Yet, Frank argues that although the variables are numerous
and complex, the lawyer-as-anthropologist is perhaps in a better
position to assess the "unknowables" of the judicial process than
is the professional anthropologist.
It might be said that the lawyer's special training, his legal knowledge,
gives him no special skills in such matters, that a non-lawyer could as
well serve as a practicing anthropologist. But the lawyer has some
advantages not possessed by the non-lawyer in such anthropological
undertakings. First, litigation may always break out, and the lawyer's
guess about its outcome, dependent in part on knowledge of the legal rules
and surmises as to the judges' reaction to the mores (i.e., the anthropo-
logy of the judiciary), is likely to be better than that of a layman. Second,
the non-litigious customs are affected by the legal rules as enunciated in
court opinions: What society, or some social subgroup, believes the courts
have decided or will decide will often influence out-of-court behavior.
The lawyer may therefore be more efficient than a non-lawyer as a working
anthropologist. For the lawyer probably has a keener awareness of the
mutual interaction of the legal rules and the non-litigious customs. 2
Returning again to his discussion of legal education, Frank
says that these psychological and anthropological elements, the
"un-ruly" and "chancy" elements as he would label them, ought
to be part of the education of the lawyer-to-be.
These guessy "intervening human acts" - which are "un-ruly" - con-
stitue no part of Hornstein's, or most law teachers', description of the
decisional process. So, once more, we have from Hornstein an endorse-
ment of a sort of legal pedagogy which, by ignoring trials and trial courts,
miseducates law students. 3
1 Courts on Trial 335. Ct., "It is unwise, I think, to speak of 'law' as a 'science' ....
The word 'science,' too, is ambiguous. To most men, however, science means some·
thing like natural science, i.e., a body of techniques (which are constantly being
revised), involving a very high degree of precision and usually yielding fairly reliable
predictions. If, for instance, by 'law' you choose to mean what courts decide, then
surely 'law' is not such a science. It is even more unwise to talk of 'social sciences'
when you mean studies of society. Most students of society, when they speak of
'social science,' or 'behavioral science,' have in mind that such studies now or will
soon resemble the products of the natural sciences .... This attempted imitation of
natural science has been a curse to the social studies." Frank, in "The Lawyer's
Role in Modern Society: A Round Table," 4]. Pub. L. 1,8-9 (1955). This is one of
Frank's most trenchant discussions of the problems of social science research and
its relation to the law. See David Riesman, "Toward an Anthropological Science of
Law and the Legal Profession," 57 Am. ]. of Soc. 121 (1951).
2 Courts on n,jal 342. For a scholarly discussion of anthropology and the problem
of values, see Laura Thompson, "Operational Anthropology as an Emergent Disci·
pline," 8 Etc.: A Rev. of Gen. Semantics 117 (1951).
3 Frank, "A Disturbing Look at the Law Schools," 2]. Legal Educ. 189, 192 (1949).
This is from Frank's answer to a previous article by Hornstein on legal education in
in the same journal.
Of course, the special training that Frank suggests for law

students, if successful, would permeate the entire legal system
and would eventually be the foundation for the training of better
trial judges.
Rheinstein, commenting on my notions of a revised law-school curriculum,
says that I am calling for the development of the "science of adminis-
tration of justice." Change the word "science" to "art," and I agree.
Instruction in such an art would include first-hand observation of all
that courts, administrative agencies, and legislatures actually do. Such
instruction would serve three purposes. First, it would aim to equip
future lawyers to cope with courthouse realities, no matter how ugly and
socially detrimental some of these realities are; for a lawyer cannot com-
petently represent his clients if he is ignorant of the devices which his
adversaries may utilize on behalf of their clients. Second, such instruction
would stimulate the contrivance of specific practical means by which
existing trial-court techniques can be improved, in order that justice
may be judicially administered more in accord with democratic ideals.
Third, it would train men to become trial judges. l
Even if this new kind of legal education could produce better

judges, Jerome Frank still thinks that it is also necessary to have
additional special training for trial court judges.
I suggest that we should at once set about contriving methods of avoiding
the avoidable tragedies caused by lack of systematic training of trial
judges. Here are my tentative ideas on the subject: Such a man should
be specially educated for that job. In law school, he should be taught not
only what a law student now learns - that is much about upper courts,
the legal rules, the values, policies, and ideals which are or should be
expressed in those rules - but also what no law school now teaches.
He should be shown, in great detail, the problems relating to the facts,
which confront a trial judge, as they do not confront a higher court judge.
He should learn all that is now known about psychological devices for
testing the trustworthiness of witnesses as to their individual capacities
for observation, memory and accuracy in narrating what they remember.
He should be taught to be alert in the possibilities of using such devices,
as they become improved, in trials. 2
If all of these suggested reforms for training better lawyers

and judges (especially wiser trial court judges) were immediately
adopted, perhaps a frontal assault on many of the legal myths
that Jerome Frank has so assiduously tried to expose to public
scrutiny could be made. And yet, Frank would not feel that our
1 Courts on Trial 245. In addition to being an amateur psychologist and anthro-
pologist of a sort, the good lawyer would need to be a social worker as well. In my
opinion, this places a terribly heavy burden on the young, fresh lawyer just out of
law school, but, of course, lawyers are a special breed of men.
S [d. at 247.
present judicial system could be completely freed of its childish

reliance on father-authority.
But a good beginning would have been made, for what better
place is there for getting at the root of the problem of the basic
legal myth than by beginning this process of public enlightenment
about the nature of the legal order in the law schools? If it is the
lawyers and judges who "dupe" the public, and who themselves
do so much to preserve what Frank regards as the legal myths,
especially that of certainty in the law, then it is through the edu-
cation of these lawyers and future judges that the public will
eventually begin to understand the realities of the legal system
under which they must live. 1
Exorcise legal myths, legal magic, verbomania, and legal logic,
cries Jerome Frank!! Tear away the facade of legal rule certainty.
Bare the realities of court-house government to lawyers, judges
and laymen alike. Perhaps then, given the tools for better under-
standing ourselves and the peculiarities of human behavior (and
especially legal behavior), we can begin to reconstruct and reform
our judicial order so that it can better meet the needs of a rapidly
changing social and political system. If law is to serve men, then
men must first learn to understand the nature and function of
law and the purposes of the legal order. 2
Education, perhaps more than any other single device, is at the
heart of Jerome Frank's philosophy of law. A pragmatic, function-
ally-oriented jurisprudence must first understand law in action,
and not as myth, before it can reform court-house government. 3
1 C/., Frank's discussion of the work of Charles S. Peirce, Nicholas St. John
Green, William James, Horace M. Kallen and the impact of American pragmatism
on jurisprudence in "A Conflict With Oblivion: Some Observations on the Founders
of Legal Pragmatism," 9 Rutgers L. Rev. 425 (1954); and his essay, "Some Tame
Reflections on Some Wild Facts," in Sidney Ratner (ed.), Vision &- Action; Essays
in Honor 0/ Horace M. Kallen on His 70th Birthday (New Brunswick: Rutgers
University Press, 1953), pp. 56-82.
2 See the admirable study by Francis R. Aumann, The Instrumentalities of Justice:
Their Forms Functions, and Limitations (Columbus: The Ohio State University
Press, 1956).
3 Even though both Frank and John Dickinson think that legal education is a
serious problem, their respective approaches to educational reform are far apart.
Ironically, Dickinson, whose views on the nature of law and the role of judges form
one of Frank's main targets, is just as concerned as is Frank with the need for re-
forming legal education. Although Dickinson is critical of the case method of teaching
law, he does not go as far as Frank does in creating a "clinical" atmosphere for the
study of law. Dickinson's major emphasis is on changes in the pre-law and law school
curriculum. See the chapter, "The Supremacy of Law and the Problem of Legal
Education," in Dickinson's Administrative Justice and the Supremacy 0/ Law (Cam-
bridge: Harvard Univ. Press, 1927), pp. 333--58.
CHAPTER SIX
Frank's Contributions to the Philosophy

of American Legal Realism
· .. The constant development of unprecedented
problems requires a legal system capable of
fluidity and pliancy. Our society would be strait-
jacketed were not the courts, with the able as-
sistance of the lawyers, constantly overhauling the
law and adapting it to the realities of ever-
changing social, industrial, and political con-
ditions; although changes cannot be made lightly,
yet law must be more or less impermanent,
experimental and therefore not nicely calculable.
Much of the uncel'tainty of law is not an unfOl'tu-
nate accident: it is of immense social value.
JEROME FRANK 1
1 Law and the Modern Mind 6-7 (\930).

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.
But Holmes was not alone in charting the route for a more
realistic examination of the law in action. When the history of
American legal realism is written, Jerome Frank's contributions,
in their own unique way, will rank with those of Justice Holmes.
Jerome Frank's contribution to the philosophy of American
legal realism, and more broadly, American jurisprudence, is best
exemplified by his attempt to subject law as myth and law
in action to the critical scrutiny of the legal scholar as
well as reformer. Frank was not a starry-eyed idealist, nor
was he an ultra-radical reformer, but was rather a happy
combination of thinker and actor who combined in his various
careers the ability to see the law in its complex and multifarious
relationships to society as a whole. He was not one of those
thinkers who is so infatuated with detail and microscopic sym-
metry that he loses sight of the whole. For him, the human enter-
prise was too unpredictable, too manifestly diverse and chal-
lenging, to invite fixed formulas or nicely-calculated panaceas for
action. And it was for this reason that he never really fit into any
1 The Common Law, 1 (1881).

one school of thought, but was constantly searching for new

questions and new solutions. 1
Perhaps his outstanding contribution to contemporary Ameri-
can legal philosophy was his formulation of fact-skepticism as an
incisive tool of legal analysis, and particularly its application to
the vagaries of court-house government. His searching analysis
of trial court activities exposed what was for him the soft under-
belly of the judicial process, and brought home to the general
public (though not always as successfully as he would have
wished) the necessity for judicial reform.
The application of fact-skepticism and all that it applies to
Frank's nearly sixteen years on the United States Court of
Appeals for the Second Circuit is a chapter in his life that has yet
to be written, but it is sufficient at this point to say that Jerome
Frank was as distinguished a judge as he was a lawyer, writer,
administrator, and teacher. 2
1 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. Hiigerstrom, Inquiries Into the
Nature of Law and Morals (Uppsala: Almquist & Wiksell, 1953); Anders V. Lund-
stedt, 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 Interpre-
tations of Modern Legal Philosophies 450, 542 (Sayre ed. 1947); Alf Ross, Towards
a Realistic Jurisprudence: A Criticism of the Dualism in Law (Copenhagen: Munks-
gaard, 1946) and his two articles, "Til-Til," 70 Harv. L. Rev. 812 (1957) and "Legal
Norms and Norms of Chess," 8 Osterr. ZeUschr. f. lilfentl. Recht 477 (1958); Frede
Castberg, Pl'oblems 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).
B 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 coun-
tries) 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 trne 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
HIS PHILOSOPHY OF LAW 121
The major elements of Jerome Frank's philosophy of law have
been contained in four of his six books. Law and the M odern Mind,
originally published in 1930, was the pace-setter. In his quest for
the debunking of the major legal myths, Frank attempted to
show the uncertainty and vagueness of the legal rules. If Men
Were Angels, published in 1942, analyzed the uncertainty and
vagueness (the contingent nature) of the facts at the adminis-
trative level and borrowed from Frank's experience with the S.
E. C. Fate and Freedom, which followed in 1945, was largely
devoted to a discussion of historical and scientific methods of
inquiry, and disavowed most of the isms that Frank had been
accused of believing in. It is the best example of Frank's philoso-
phyof "possibilism."
Frank's second "bombshell," Courts on Trial, was published in
1949. Although it was a compendium of most of his previous
writing on the legal myths, the function of the judge, the jury
system and legal education, this book brought fact-skepticism to
its fruition in a devastating attack on court-house government and
a cry for needed reforms.
The controversial Save America First, published in 1938, was
devoted to problems of economic welfare and foreign trade, and
was to some extent the cause of the "isolationist" label that was
attached to Frank's name at that time.
Frank's last book, Not Guilty, written in collaboration with his
daughter, Barbara Frank, was published posthumously in 1957.
In its intense condemnation of the conviction of innocent men, it
is perhaps the best example of Judge Frank's life-long passion for
criminal justice and the most explicit evidence of his belief in the
values of a democratic society.
In the nineteen years between the publication of Law and the
Modern Mind and Courts on Trial, Jerome Frank vigorously
went forth into the wilderness of law on his crusade against the
legal myth of rule certainty and finality, and despite the heat of
the criticism on all sides of his arguments, he still emerged a man
of good humor and sweet disposition. 1 The criticism of the legal
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 v. Bell, 274 U.S. 200 (1927).
1 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
journals is at times vitriolic and bitter, sometimes mellowed and

constructive, 1 and at other times, hell-bent on partial or com-
plete demolition of the opponent's arguments. 2 But American
jurisprudence is not, however, always prone to accept good
humor as good law, nor isit always conducive to the sweet dispo-
sition.
Yet Jerome Frank, crusader that he was, remained a reformer
to the last. He never flinched from a good fight, and even when
he was the center of bitter controversy, he always attempted to
revise or alter his original ideas so that he would not become a
victim of the dogmatism that he so severely disparaged in his
own writings.
The world of American jurisprudence is a strange one, if we
probe deeply into its environs. Its opinions run the gamut, in the
case of Jerome Frank's philosophy, from Fred Rodell to the late
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).
1 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 Modem Mind, 21 Pol. Q. 411, 418 (1950). "I commend the
book ... for the author's willingness to discuss his own shortcomings; for his short-
hand 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. Free-
man, Book Review of Courts on Trial, 35 C01'nell 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 Modem Mind, 19 Ky. L.J. 349 (1931).
a 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 andsome may act like boomerangs. Thisfriendly 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 Modem Mind, 133 Nation 259 (1931) .
.. . .. It is perhaps unfortunate that so much of the book is devoted to the discussion
of psychology of the desire for certainty. This is interesting but unimportant .... "
Francis H. Bohlen, Book Review of Law and the Modun Mind, 79 U. Pa. L. Rev.
Owen J. Roberts. Professor Rodell, for example, is an admirer of
Frank, but not a slavish follower of all his ideas. Rodell, being a
legal realist and something of an intellectual "radical" himself,
has high praise for the "eclectic" element in Frank's writing, 1 the
breadth of which amazes even his most ardent critics.
For Judge Frank, in the breadth and scope of his curiosity and knowledge,
comes about as close as anyone I know to being the modem counterpart
of the fabulous "compleat man" of medieval and earlier times. His book
abounds with eclectic references to anthropology, psychology, philosophy,
literature, mathematics, physics, even music, and with casual quotations
from pundits, past and present, in these and other fields of learning. So
familiar is the Judge with all this stuff, and with his more legal material as
well, that he frequently forgets to footnote for sources the quotes and para-
phrases he tosses off in such profusion .... 2
To the more conservative legal mind, over half of Frank's work

that is commonly labelled "legal philosophy" is really non-legal in
nature. The materials that Professor Rodell mentions with
respect are not ordinarily considered the rightful domain of the
legal philosopher. Owen J. Roberts, who was formerly Dean of the
Law School of the University of Pennsylvania, and prior to that,
Associate Justice of the United States Supreme Court, did not
think that Courts on Trial presented anything that was funda-
mentally new in Frank's writing. 3 He suggests that the lay
reader concentrate on Frank's list of legal axioms and suggested
reforms in Courts on Trial, at pages 416-26.
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 0/ ehe 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.]. 111 (1931).
1 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).
a Rodell, Book Review of Courts on Trial, 25 Ind. L.]. 114, 115 (1949). Literary
technicalities are apparently unimportant to an "eclectic" like Jerome Frank.
a Roberts, Book Review, 98 U. Pa. L. Rev. 477 (1950). I agree with Roberts'
suggestion that the lay reader confine himself to pp. 419 ft. of the book for the kernel
of Frank's thought on law and related matters.
Perhaps Roberts is correct in saying that the differences

between Frank's earlier work and the conclusions in Courts on
Trial are minimal, because much of his previous writing is
incorporated in this book. Yet, some of the fundamental asser-
tions contained in Law and the M odern Mind did not remain
intact in Courts on Trial, particularly the slavish reliance on
psychological data. 2
LEGAL" AXIOMS" AND FRANK'S SUGGESTED REMEDIES
Although on many occasions, Jerome Frank has claimed the

right to correct his mistakes, his philosophy of law retained much
of what it had in 1930, when the first edition of Law and the
Modern Mind came off the press. 3 I think that a close perusal
of the legal axioms and suggested reforms that Roberts referred
to above will give the reader a summary statement of Frank's
philosophy of law:
1 I 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).
2 "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 qniet 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).
3 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 Uewellyn 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).
... Here is a list of some of the old "axioms" I have thus discussed:
1. The "personal element" in the judicial process should not and usually
does not have much effect on either legal rights or court decisions. Even
if we admit that the "personalities" of witnesses, lawyers, jurors and
judges do have considerable effect, we must disregard all elements of those
• 'personalities" which are not fairly uniform.
2. The legal rules are the dominant factor in decision-making.
3. When those rules are precise, they ordinarily prevent litigation; and, if
litigation does occur, it will be easy to predict the decisions.
4. Trial judges and juries have only the limited discretion conferred by
the legal rules; they have no discretion when those rules are precise.
5. Decisions result from the application of legal rules to the actual facts
involved In law-suits.
6. If the actual facts of two cases are the same, usually the decisions in
those cases will be identical.
7. Trial courts usually discover the actual facts of cases; usually "the
truth will out"; innocent men are hardly ever convicted; seldom does a
man lose his property or his means of livelihood because of a court's
mistaken notion of the facts.
8. The intense fighting method of conducting trials is the best aid in
discovering those facts.
9. Effective criticism of most decisions is easy.
10. Upper courts can, and do, correct most of the mistakes of trial courts
11. Upper courts are far more important than trial courts.
12. Less attention need be paid to the selection of trial judges than to
that of upper-court judges.
13. Almost any man licensed to practice as a lawyer is qualified to be
a trial judge.
14. Juries are better fact-finders than judges.
15. Juries are better at rule-making and rule-revising than judges.
16. It is desirable that juries should ignore any legal rules they deem
undesirable.
17. In law-suits (whether or not tried by juries), legal rules relating to
property and commercial transactions are precise and usually lead to
predictable decisions.
18. Individualization of cases, if desirable, should be accomplished
surreptitiously, not openly.
19. The method. of following precedents, if properly used, ensures
certainty and stability, supplies rules on which men can safely rely.
20. Trial courts, in fact finding, have little to do with the interpretation
of statutes.
21. Non-lawyers should be deceived into believing that the results of
the judicial process are more certain, regular, uniform and just than in
truth they are or can be.
22. Law students should not be persuaded to observe at first-hand
what goes on in trial courts and law offices.
23. The attempt to obtain legal certainty (i.e., predictability of decisions) is
more important than the attempt to obtain just decisions of specific law
suits. 1
1 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 1/ Men
Were Angels 332-49 (1942).
Frank says that these legal "axioms" (which are not his as-
sumptions) are not a true reflection of legal reality. They are
really legal fallacies. One of the major defects of legal axioms (or
assumptions) is that the distinction between what Frank calls
"wish-assumptions" (the ought) and "is assumptions" (the is) is
not clearly distinguished in most legal writing. Since these "wish-
assumptions" are really programmatic in the sense that they
represent the kind of legal order that ought to exist in the future,
they can be useful only if one realizes what the actual legal order
is like. 1
Clear thinking demands a recognition of legal actuality. Once
the "is-ness" of the legal order can be established, some suggested
reforms can then be intelligently presented to the lay public. 2
This is what Frank attempts to do when he suggests that the legal
axioms that he listed were the opposite of legal reality. They
served only as the prolegomena to his subsequent list of proposed
reforms:
I have done my best to keep separate my own two kinds of assumptions.
Endeavoring honestly to describe the actualities of court-house activities,
I have criticized some of them, and have proposed some reforms. For the
reader's convenience, I here list some of those suggested reforms:
1. Reduce the excesses of the present fighting method of conducting

trials:
(a) Have the government accept more responsibility for seeing that all
1 " . . . Interests, points of view, preferences, are the essence of living. Only death
yields complete dispassionateness, for such dispassionateness Signifies utter indiffer-
ence .... 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 dis-
passionateness 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 CorneU L.Q. 568 (1932);
Law and the Modern Mind, 168; It 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. Ct.,
Felix Frankfurter, "Mr. Justice Holmes and the Constitution," 41 Harv_ L. Rev.
121, 132-33 us. 33-34 (1927), and Mr. Justice Frankfurter's concurring opinion in
Public Utilities Commission v. PoUak, 343 U.S. 451, 466-67 (1951).
a Ct., "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).
practically available, important, evidence is introduced at a trial of a
civil suit.
(b) Have trial judges playa more active part in examining witnesses.
(e) Require court-room examination of witnesses to be more humane
and intelligent.
(d) Use non-partisan "testimonial experts," called by the judge, to
testify concerning the detectible fallibilities of witnesses; circumspectly
employ "lie-detectors."
(e) Discard most of the exclusionary evidence rules.
(f) Provide liberal pre-trial "discovery" for defendants in criminal cases.
2. Reform legal education by moving it far closer to court-house and
law office actualities, largely through the use of the apprentice method of
teaching.
3. Provide and require special education for future trial judges, such
education to include intensive psychological self-exploration by each
prospective trial judge.
4. Provide and require special education for future prosecutors which,
among other things, will emphasize the obligation of a prosecutor to obtain
and to bring out all important evidence, including that which favors the
accused.
5. Provide and require special education for the police so that they
will be unwilling to use "third degree."
6. Have judges abandon their official robes, conduct trials less formally,
and in general give up "robe-ism."
7. Require trial judges in all cases to publish special findings of fact.
8. Abandon jury trials except in major criminal cases.
9. At any rate, while we have the jury system, overhaul it:
(a) Require fact-verdicts (special verdicts) in all jury trials.
(b) Use informed "special" juries.
(e) Educate men in the schools for jury service.
10. Encourage the openly disclosed individualization of law suits by
trial judges; to that end, revise most of the legal rules so that they
avowedly grant such individualizing power to trial judges, instead of
achieving individualization surreptitiously as we now largely do.
11. Reduce the formality of appeals by permitting the trial judge to sit
with the upper court on an appeal from his decision, but without a vote.
12. Have talking movies of trials.
13. Teach the non-lawyers to recognize that trial courts have more
importance than upper courts. 1
These are only tentative proposals, for Jerome Frank knows

that it will take many legal minds and perhaps many generations
before the judicial process can even begin to fit the needs of a
changing legal order, especially at a juncture in human history
when life is changing so fast in the technological and political
realm that man's moral and spiritual guides have had little time
1 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.
to catch up with the mechanisms of his own making. 1 The

atomic age of modern science is still, in many respects, the
eighteenth century of the jural order. But this is no reason, says
Frank, for abdicating the search for truth.
It is true that, as to vast areas of experience, the human race is ignorant
and will always remain largely so. For there are factors in the universe of
which, because of our limited equipment, we shall always, almost surely,
remain in darkness. Ignorance will therefore always play an important
part in human affairs. But because our ignorance is and must be large, that
is no reason why we should wallow in it, no reason why we should diminish
our efforts to reduce the unknowable so far as possible. 2
If ignorance is not bliss and since man is the creature of imper-
fect knowledge, the most that we can expert to find are proba-
bilities, and not nirvana or some kind of perfect certainty.
. . . The insane asylum, and not any part of the ordinary walks of life,
is the place for those who demand complete freedom from all uncertainties.
We are but mortal, and contingency is the essence of mortality. Only in
the grave do we escape it .... 3
1 C/., "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 insti-
tutions 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. Yank-
wich'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 ex-
perience, 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).
8 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.''' lind., note 15. C/.: "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 cer-
tainty is lost, the sacritice must willingly be made .... " Francis A. Allen, Book Re-
view of Law and the Modern Mind, 44 lU. L. Rev. 554, 556 (1949).
It is the elemen t of chance, of contingency, and of uncertainty 1
(what Frank earlier called "possibilism") that made life for
Jerome Frank a challenging experience, a pragmatic search for
meaning amidst chaos, paradoxical as that may sound .
. . • To ask for absolute exactitude in any phase of government is absurd.
"Every day, if not every year," said Mr. Justice Holmes, "we have to
wager our salvation upon some prophecy based upon imperfect knowledge. 2
CRITICISM AND COUNTER-CRITICISM OF JEROME

FRANK'S PHILOSOPHY OF LAW AND OF LEGAL REALISM
IN GENERAL
As a leading member of the so-called school of American legal

realism, Jerome Frank has always been under attack for his basic
assumptions on law and the legal order. He has always answered
his critics, but he has hotly denied that a "school" of legal realism
really existed. 3 As early as 1931, Frank protested the use of the
term "realism" and suggested some better term of reference, e.g.,
"possibilism," "experimental jurisprudence," "constructive skep-
1 " .•• 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 responsibili-
ty. In any event, in a zestful adventure like this, where inquiry thrives upon un-
certainty, the issue ought to be left open." Walton H. Hamilton, "The Legalism of
Law," Book Review of Law and the Modem Mind, 65 New Republic 277,278 (1931).
2 Courts on Trial 426. Ct., " ... 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." Mal-
colm A. Hoffman, "Old Wine," Book Review of Law and the Modern Mind, 7 Fed.
B.J. 223, 224 (1946).
3 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 ot Law; Credos ot Sixteen American Scholars (1941) for short state-
ments by such men as Bingham, Cook, Morris Cohen, Dewey, Dickinson, Fuller, Green,
Kennedy, Kocourek, Llewellyn, Moore, Patterson, Pound, Powell, Radin, and Wigmore.
ticism," "legal observationism," or just plain "legal modesty."

Whatever the label used, Frank felt that the so-called legal
"realists" were related only in the negative sense, in their skeptical
attitude toward legal rules, and in their curiosity for observing
the law in action. Skepticism and pragmatism were the main in-
gredients of their philosophy of law, but variations of this real-
istic outlook were numerous.
. . . When writers of realistic inclination are writing in general, they are
bound to stress the need of more accurate description, of Is and not of
Ought. There lies the common ground of their thinking; there lies the area
of new and puzzling development. There lies the point of discrimination
which they must drive home. To get perspective on their stand about
ethically normative matters one must pick up the work of each man in his
special field of work. There one will find no lack of interest or effort toward
improvement in the law. As to whether change is called for, on any given
point of our law, and if so, how much change, and in what direction, there
is no agreement. Why should there be ? A group philosophy or program, a
group credo of social welfare, these realist have not. They are not a groUp.l
Jerome Frank is not unhappy about the company he keeps;
what he really frets about is the fact that the non- and anti-
realists do not adequately or accurately distinguish the wide
variation of viewpoints among writers of realistic persuasion.
The fallacy of the Dickinson-Pound-Fuller-Cohen method of lumping all
the so-called "realists" together can be shown by applying that same
method to critics of the "realists." One would then say that Kennedy,
Pound and Morris Cohen must be assumed to agree with one another on
virtually everything concerning the judicial process because they both
disagree with Llewellyn. On that basis, one would ascribe to Morris
Cohen all the views of Fuller. But everyone who knows the attitudes of
those men knows 'how absurd that would be. And Kennedy would surely
be shocked if all Cohen's ideas were taken as his. 2
1 Karl N. Llewellyn, "Some Realism About Realism - Responding to Dean
Pound," 44 Haf'V. 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 Haf'V. 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.]. 300, 418 (1940), 40 Col. L .Rev.
581 (1940).
I Frank, It Men WU'e Angels 278. Frank devoted a long Appendix V, entitled
"Comments on Some Criticism of the So-Called 'Realists,''' pp. 27lh315, to a dis-
cussion of the attacks made on him and on other "realists."
When it comes to distinguishing among his critics, Frank is
bound to be much harder on his "armchair" critics than he is on
those who come from the ranks of judges or practicing lawyers.
There are exceptions, of course, but men such as Morris Cohen,
Lon L. Fuller, and Mortimer J. Adler have been good targets for
the spirited elements of Frank's criticism .
. . . Like most armchair students of matters legal, Cohen, for lack of
courtroom experience, shuts his eyes to almost everything but legal rules
and principles. And he is able to do so by insisting on discussing nothing
but "law" - defined as legal rules and principles. One wished that some
day Cohen would read and write his reactions to a book like Goldstein's
Trial Technique or Wigmore's Principles of Judicial Proof. 1
One of these "exceptions" is the late Justice Benjamin N.

Cardozo. Cardozo, in a paper read before the New York State Bar
Association in 1932, set out to demolish most of the arguments of
the legal realists. Frank was unhappy, not so much with the
general nature of this attack on legal realism, but with Cardozo's
failure to distinguish the two general types of legal realists, the
"fact-skeptics" and the "rule-skeptics."
In Cardozo's article in 1932, on the "realists," he falls into the usual
errors: (1) He mistakenly assumes that all of them, in describing legal
uncertainty, are referring exclusively to uncertainty in the legal rules and
principles. (2) He also erroneously asserts that they regard as desirable the
extent of the legal imprecision which they describe as existent. The second
error we may, at this point, ignore. The first is more significant. For it
makes plain Cardozo's lack of great concern with the difficulties of the
fact-finding process and with the grave importance of that process. It is,
indeed, remarkable that in this paper by Cardozo, criticizing the "realists"
(a paper forty-four pages in length) he does not, even once, so much as mention
the discussion of the elusiveness of the "facts" by those "realists" whom he
singles out for special criticism . ... 2
Insofar as a science of law is concerned, in the sense of a body

of knowledge that would suffice to enable the confident prediction
of the outcome of a case, Frank has always denied its possibility,
1 [d. 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.
• [d. at 288. Cardozo's paper was printed in 55 N. Y.S.B.A. Rep. 263 (1932), and
repro in his Selected Writings, edited by Margaret E. Hall (N.Y.: Fallon Publications,
1947), pp. 7-27.
because of the large extent of what he calls "inherent inexacti-

tude," both as to the rules and the facts. 1 But Frank's attack on
the myth of rule certainty has at times been interpreted as an
attack on all legal rules. For this reason, he has been labelled a
"nominalist" on many occasions, in contrast to the "conceptual-
ists" who believe in the existence of legal rules. Felix Cohen,
Morris Cohen, Mortimer Adler, and Lon Fuller would fit into the
latter category.
Jerome Frank is extremely critical of Felix Cohen's use of
mathematical logic, and what Frank considers to be his complete
failure to see the "gestalt" factors in the judicial process, es-
pecially at the level of court-house government. 2
Professor Fuller believes that American legal realism has done
some good, especially in its exorcism of many of the philosophical
and methodological dogmas of nineteenth century jurisprudence,
but it has also created new confusion. Fuller writes:
The law has always to weigh against the advantages of conforming to life, the
advantages of reshaping and clarifying life, bearing always in mind that
1 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 ot 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 (Cam-
bridge: Harvard Univ. Press, 1936), p. 202. Cf. Lee Loevinger, "Jurimetrics - The
Next Step Forward," 33 Minn. L. Rev. 455 (1949).
a 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).
its attempt to reshape life may miscarry, or may cost more than they
achieve .... 1
Futhermore, the "conceptualist" and "realist" schools have not

always ben clear about what was being discussed.
It is well to remember that the difference between the realist and the
"conceptualist" is not so much a matter of specific beliefs as it is of mental
constitutions. The conceptualist is not naive enough to suppose that his
principles always realize themselves in practice. Indeed, since he is usually
a practical man, he is apt to be more familiar with the specific ways in
which life fails to conform to the rules imposed on it than the more philo-
sophic realist. It is not, then, that the conceptualist is ignorant of the
discrepancy between Is and Ought. He is simply undisturbed by it ....
The realist ends in ambiguity. About one thing he is clear. The disgraceful
discrepancy between life and rules must be eliminated .... 2
Fuller says that the realist desire for concrete things (e.g., the
facts, or the law in action) has some dangerous pitfalls:
... Now this intellectual bias, for it is a bias, has its value in a science
which has suffered for centuries from an unbridled pseudo-rationalism.
But like all biases the realist's peculiar bias may sometimes lead him
astray. He should remember that not all significant facts are "concrete."
He needs to be reminded that the love of the tangible and concrete, like
other human loves, may sometimes, when thwarted, fabricate its own
object. 3
Felix S. Cohen, whom Frank described as a "rule-skeptic,"
always concerned himself with the metaphysical aspects of law,
especially in his book, Ethical Systems and Legal Ideals (1933).
Cohen's main criticism oflegal realism,orwhat he calls "function-
al jurisprudence," is that the task of valuation has been ignored:
Functional description of the workings of a legal rule will be indispensable
to one who seeks to pass ethical judgments on law. The functionalist,
however, is likely to be lost in an infinite maze of trivialities unless he is
able to concentrate on the important consequences of a legal rule and
ignore the unimportant consequences, a distinction which can be made only
in terms of an ethical theory. 4
1 Fuller, "American Legal Realism," 82 U. Pa. L. Rev. 429, 460 (1934).
2 ld. at 461.
8 ld. 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.
4 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
One valid criticism of Jerome Frank's writing has been the

slipshod manner in which he deals with his materials. His books
are a conglomeration of various and diverse materials gleaned
from voluminous reading, but sometimes without adequate
digestion of their contents. 1 Elmer Davis, in reviewing Frank's
Save America First, found the book written in a loose fashion that
gave the impression of reading "half a dozen different essays
printed for convenience in a single volume." Davis said that
during the seven years that Frank wrote this book, his objective
and emphasis had shifted.
The book was written, he says, "in the interstices of an active law prac-
tice"; but his interstitial secretions seem to have flowed pretty freely ....
Mr. Frank has such good ideas to sell that it is a pity he did not do a better
job of window-dressing. 2
Professor Edmund M. Morgan, who is highly respected by
Frank, was tempted to cry after reading Courts on Trial:
element in the judging process, Vi8., 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 be-
tween the words of the legislature and the professional prejudices and distorting
apparatus of the bench, between the ideas that emerge from this often bloody en-
counter 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).
1 Cf.: "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 in-
adequately 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 combiuing 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).
B Davis, "Keep the Home Fires Burning," 18 Sat. Rev. 0/ 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 Modem Mind, all
of his books were written under the stress and strain of admiuistrative, teaching,
or judicial responsibilities. Not GuiUy, his last book, was completed by Judge Frank
and his daughter Barbara the day before his fatal illness. C/., Professor Alburey Cas-
tell in a review of F. C. S. Northrop's The Meeting of East and West: An Enquiry Con-
cerning 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).
... 'Jerome, thou art beside thyself; much learning hath made thee mad.'
... I bave never before read a book which contained so much of what
seems to me good plain common sense and so much arrant nonsense. 1
But "arrant nonsense" is a weak expletive, compared to some

of the things Frank has been accused of being: Freudian, econom-
ic determinist, psychological determinist, behaviorist, Marxist,
collectivist, socialist, isolationist, etc. Frank has denied his
addiction to any ism, philosophical or otherwise. Yet, Edward F.
Barrett, for example, feels that Frank does believe in an absolute,
even if it is a strange one, namely, the "non-absolute." 2 But
Frank would not consider this a serious indictment of his work,
for the "non-absolute" is at the heart of his philosophy.
In a similar vein, Lee Loevinger writes that Frank's method of
approaching legal problems is somewhat backward.
It seems to me that Judge Frank, implicitly in his criticism of existing
institutions and explicitly in his proposed reforms, would have us proceed
from the more specific to the more general and from the more concrete to
tbe more abstract .... However, it seems to me that we have arrived at
the point at which we can move forward only by asking specific questions
about the legal process which are capable of relatively scientific investiga-
tion. It seems to me that Judge Frank's last book illustrates many of the
pitfalls of the philosophical approach to the legal process. It is filled witb
assumptions as to the nature of law-suits, the metbods by wbich they are
bandIed, and the results achieved, which are obviously too broad to be
supported by the personal observations of one man and yet are asserted
without any apparent basis other than the author's opinion. On the basis
of these assertions, it is argued that substantial improvement would be
achieved by giving judges greater power to decide cases according to their
1 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." [CouTts on T1'ial 27.] Indiscussing 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).
I 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 II, 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.
own individual ideas of 'justice: But the argument rests upon no more
than its own mere assertion. How or why the results achieved would be
better is not disclosed. 1
Whereas Roscoe Pound calls the legal realists (or at least
some of them) the "give-it-up" philosophers, 2 Professor Philip
Mechem calls legal realism the "jurisprudence of despair." This
infuriated one of Jerome Frank's loyal defenders and former
colleague, Thurman W. Arnold, who answered Mechem with the
following statement:
... It was a natural reaction which may be compared to the reaction of
the ethical philosophers at the beginning of the century toward psychoana-
lytical descriptions of "love" and "honesty." They felt their ethical world
crumbling, just as Professor Mechem felt his jurisprudential world crumbl-
ing under the impact of an objective analysis. 3
Much of the criticism of the work of Robinson, Arnold, and
Lasswell was directed not at their use of Freudian terminology
and psychological techniques, but at their exaggerated and
slavish use of these techniques. In my opinion, Jerome Frank is
not quilty of this extremism, but lies somewhere between Lasswell
on the one hand and perhaps Mechem on the other. 4 Some
critics felt that the Freudian fetish was a passing fancy of Frank
in one stage of his growth.
1 Loevinger, Book Review of Courts on Trial, "The Semantics of Justice," 8
Etc.: A Rev. 0/ 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).
a See chap. II, "The Give-It-Up Philosophies," in Pound's Contemporary Juristic
Theory (Claremont: Claremont Colleges, 1940), pp. 29-56.
3 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 Robin-
son of the Yale Law School, but indirectly included much of Jerome Frank's philo-
sophy 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 CorneU 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).
4 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 a-
nachronistic theory hold water? The nineteenth century father, or clergyman, or even
teacher did have an authoritarian position and a role that wonld 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
Judge Frank is a pragmatist, as ardent a pragmatist in 1946 as he was a
Freudian in 1930 when he published Law and the Modern Mind. 1
While it is true that Frank was a legal pragmatist, he did not

always feel that those who followed John Dewey (e.g., Cook,
Llewellyn, Patterson, Cardozo, and Felix Cohen) were truly
pragmatic. He says that their legal pragmatism, if it can be
called that, is only two-dimensional (they haven't achieved 3-D as
yet), and that these so-called legal pragmatists have failed to
appreciate the pragmatic bent of Aristotle's legal writings. 2
Having discovered Aristotle's discussion of equity at such a
late stage of his own writing, 3 Frank was prone to believe that he
had discovered a hitherto unknown gold mine. His virtuous air
of originality in seeing for the first time what philosophers had
pondered time out of mind has bothered some reviewers, and this
writer is inclined to believe that the "compleat man" that
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 aU 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.
1 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.
8 Frank, "Modern and Ancient Legal Pragmatism - John Dewey & Co. vs. Ari-
stotle," 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 ap-
preciates 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. Ct. 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.
8 . . . . . 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, Frankhad 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
Professor Rodell wrote about could sometimes behave in a most

unscholarly manner. 1
Jerome Frank has stoutly denied the anti-realists' assertions
that the legal realists do not believe in legal certainty, ideals,2
or in reason. Frank has a healthy respect for all of these, but
where he differs strongly from his "non-realist" critics is - -
•.. in description of the extent of legal uncertainty occasioned by the power
of courts to find the "facts in litigation" . .•• 8
As a legal philosopher, Jerome Frank never delighted in legal
uncertainty; his main purpose throughout his basic writings was
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 IntrodllCtion
to Legal Science, 57 Harv. L. Rev. 1120, 1129 (1944).
1 CI. Milton Konvitz: "He takes pains to avoid the charge of nihilism or anti-
nomianism. 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, how-
ever, 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 II Men Were Angels, 56 Harv. L. Rev. 1020, 1022 (1943).
I 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 II Men Were Angels 317-24 (1942). On the admissibility of evidence, see his con-
curring opinion in United StaUs 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 StaUs v. Gordon, 236
F. 2d 916 (2d Cir. 1956), especially his statement that " ... An overzealous prose·
cutor'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 conllict 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 be-
havior? .. 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 Re·
view 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 hinlself, 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.
a Frank, II 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.
to bring about improvements in the difficult process of finding
the facts (subjective as they are) in lawsuits. One could almost
argue that Frank felt that he had the moral duty to tell the
American people what was wrong (in his opinion) with their legal
system.
The legal traditionalists' viewpoint has carried over to many educated
non-lawyers, giving them a false and generally soothing impression of the
operations of our court-house government. In this book, I tried - I hope
in a manner understandable to intelligent laymen - to dissipate that false
impression, because I felt that, in a democracy, the citizens have the right
to know the truth about all parts of their government, and because, with-
out public knowledge of the realities of court-house doings, essential re-
forms of those doings will not soon arrive. 1
Another accusation that Jerome Frank disavows is the as-

sertion that the legal realists believe in nothing but force.
Since the violation of some laws is a normal part of the behavior of every
member of every group, lawlessness reduces to a charge of a mistaken se-
lection of the existing laws which are to be ignored. It is evident that the
notions of what constitutes such a mistaken selection vary from group to
group and are not uniform even within any particular group ... The
seeming lawlessness of any group is the result of the gap between the legal
standards apparently set by the political community and the more
exigent ethical standards and psychological drives operative within that
particular group. a
The legal realists have achieved at least one noteworthy acc om-
plishment in the history of modem American legal thought, namely,
the stimulation of creative discussion about the content and the
1 Frank, Preface to the sixth printing of Law and the Modern Mjnd 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 Phuosophy From Plato to Hegel, 25 Ind.
L.]. 231, 235 (1950).
B Frank, "Lawlessness," in 9 Encyc. Soc. Scj. 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 Proceedjngs 0/ the NaUonal
Conference 0/ Socjal Work 326-32 (Detroit, 1933).
quality of our legal institutions. 1 They have evoked criticism

from the most fertile minds in the field of jurisprudence and this,
in itself, is an achievement that deserves praise. Certainly, the
judicial "revolution" of the 1930s and 1940s was largely the
result of the realists.
Because Jerome Frank was a crusader in the most complete
sense of the term, he has evoked more criticism of his work than
some of the other legal realists. He has not failed to attack even
the giants in the field if he feltthat their logic was in error. 2
Jerome Frank's conception of his "mission" was far broader
and all-inclusive than the purposes of men like Karl Llewellyn or
Max Radin, who are much humbler in their efforts to find a pragma-
tic basis for legal reform. For example, Llewellyn writes that -
Law's precise office is not to change, but to prevent change; or when that
will not do, then to adjust with the least possible rearrangement to the
new condition. 3
Karl Llewellyn, like Frank, is not happy about the way some
of the anti-realists have attacked his writings. In 1930, he
1 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,
aud he dignifies himself in showing how the profession cau 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 Couris on Tf'ial. 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 dis-
pelling 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 Couris on Tf'ial, 2 Ala. L. Rev. 181, 184 (1949). Or Alfred L. Scanlan in a
Book Review of Couris on Tf'ial: "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.... " Scan-
lan, 25 Notf'e Dame Law. 396, 399 (1950).
2 "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 Ff'eetlom, "Free-
Wheeling Among Ideas and Ideals," 28 Sat. Rev. 01 Lit., June 23,1945, p. 10. Arnold
always did like a good fighter. CI. 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 dig-
nified to minimize personalities." Stason, Book Review of II Men WnB Angels.
41 Mich. L. Rev. 269, 275 (1942).
8 Symposium on Law lind the Modnn Mind, 31 Col. L. Rev. 82,88 (1931).
published privately a small but important book called The
Bramble Bush: On Our Law and Its Study, in which he gave a
definition of what he thought the "law" really is:
... This doing of something about disputes, this doing of it reasonably,
is the business of law. And the people who have the doing in charge,
whether they be judges or sheriffs or clerks or jailers or lawyers, are of-
ficials ofthe law. What these officials do about disputes is, to my mind, the law
itself. 1
The reaction to this statement by Llewellyn was as vigorous in

1930 as the criticism that was forthcoming when Frank published
Law and the Modern Mind in the same year. Llewellyn was
incensed over the reaction to the definition of law that he pre-
sented in his book.
... No piece of ammunition in the whole teapot compares in the frequency
of its use, nor yet in the irresponsibility thereof, with our little thirteen
word passage, With its help, I was shown to disbelieve in rules, to deny
them and their existence and desirability, to approve and exalt brute force
and arbitrary power and unfettered tyranny, to disbelieve in ideals and
particularly in justice. This was painful to me. But it was even more
painful to observe that none of the attackers, exactly none, gave any evi-
dence, as they slung around the little sentence, of having looked even at
the rest of Bramble Bush itself. A single sentence, if it made a good brick-
bat for a current fight, was enough to characterize a whole man and his
whole position. And that ought to be painful to anybody .... 2
While Frank regards law as what courts do in fact, Llewellyn

stretches this definition to include aU public officials who act in
respect to disputes. Both definitions have created havoc among
those non- and anti-realists who feel that this nihilistic-type
definition can only lead to complete and utter chaos. An example
of a critic who finds these realistic definitions of law almost
fantastic in their implications is William Seagle, who wrote:
Thus a hard-boiled school of American "realists" tends to regard the law
as simply "what the courts do in fact." It is one of the few definitions in
which the point of view of the lawyer advising the practical-minded client
is taken into consideration. But no lawyer can tell a client what the courts
will do in fact. He can only tell him what the courts are supposed to do ....
A leading realist defines law as simply "official action." But if law is
thus what legal officials will do, why not say with equal logic that the
law is what laymen will do? There is much law which is followed by
laymen although it has never been litigated in the courts. The reductio ad
1 Llewellyn, The Bramble Bush (N.Y.: Oceana Publications, 1951 ed.) p. 12.
2 [d. at 10.
absurdum of the whole position is that a statute is not law until it has been
interpreted by the courts. Yet it is a position from which one of the two
founders of realism has not shrunk. Thus the legislator vanishes complete-
ly. Moreover, the whole conception of legal error and a hierarchy of
appellate tribunals becomes impossible. There can be no such thing as an
error of law if there is no such thing as law. The courts may freely disre-
gard law if the law is what they do in fact .... 1
Edgar Bodenheimer is fearful of what the realists have done to
what he calls "a government of law" :
A second objection to realist jurisprudence is that it constitutes a new
form of Austinianism. The realistic theory of law has dethroned the
Austinian legislator and put in his place the American judge as the sover-
eign creator of the law. Austin conceived of law as a command of a sover-
eign legislator. The legal realists, particularly Frank, conceive of law as a
command or pronouncement of a sovereign judge. Both views throw
little light on the essential character of the law .... 2
Jerome Frank would emphatically deny that he made anybody
or anything sovereign in the sense that Bodenheimer uses. He
has said on many occasions that all he was doing was describing
how the judicial system actually worked, not how it ought to
work. If it is the judges who make law, that is a lact, and not a
"wish-assumption"; or, if it is not an objective "fact," it is at
least the best statement of legal reality that a contemporary
legal philosopher can offer at this stage of human knowledge. Yet
Bodenheimer, Pound, Morris Cohen, and many other writers felt
that the legal realists' attack on rule certainty has led to some
dangerous consequences .
. . . There is a certain danger that the skepticism of realistic jurispru-
dence may, perhaps vey much against the intents and wishes of its re-
presentatives, prepare the intellectual ground for a tendency toward
totalitarianism. If realistic jurisprudence is interested in the preservation
of the law, it must supplement its analysis and criticism of the present
legal order by a constructive program of legal change which leaves
undisturbed the essential features of a "government by law." 3
1 Seagle, The History 0/ Law (N.Y.: Tudor Publishing Company, 1946), pp. 17-18'
Originally published under the title, The Quest For Law.
S Bodenheimer, Jurisjwvdence (N.Y.: McGraw· Hill, 1940), p. 314. Casting a
"plague Oil 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. Forutll 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. Ref). 365, 371-72, 374-76 (1958).
3 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 "ver·
But Bodenheimer's admonitions fallon deaf ears, since his pro-

posals would, of course, be impossible from Frank's point of view.
If rule certainty and the Law-as-Father are the basic legal myths,
how can "constructive" legal change leave these myths intact?
The whole temper of Frank's legal philosophy (or at least his
program of reform) is to expose legal myths to public scrutiny,
and then proceed to bring the legal system into proximity with
contemporary social ideals (however defined). And a "govern-
ment of (or by) law" is not a part of Frank's program, if this
means government by absolute rules of law, or exaggerated
worship of legal rule certainty, or a crass rejection of the part
that judicial fact-finding plays in the judicial process.
Hermann Kantorowicz takes a somewhat different view of the
legal realists, based mainly on their methodology and their con-
fusion over what he considers to be the basic rules of philoso-
phical inquiry. So far as he can detect, the basic "sins" of the
realists are their confusion of the natural as against the cultural
sciences; explanation and justification; law and ethics; realities
and their meaning; a concept and the elements that comprise that
concept; and cases and case law. 1
THE TROUBLESOME PROBLEM OF "FACT" AND "VALUE"
Much of the confusion amidst the realists' and anti-realists'

discussion of legal philosophy is caused by the troublesome "is"
and "ought" of the judicial process. The non- and anti-realists
say that the legal realists deny the existence of rules and therefore
do not believe in values. The realists emphatically deny this
accusation, but advance the notion that the "is" and the "ought"
bomania." See Frank's preface to the sixth printing of Law and the Modern Mind
xxiii (1949); II 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. 81-90. CI., Herbert w. Schneider, Three Dimensions 01 Public Morality
(Bloomington: Indiana Univ. Press, 1956), pp. 88-89 for a discussion of the "majesty
of the law" and its effects.
1 Kantorowicz, "Some Rationalism About Realism," 45 Yale L.J. 1240, 1248-50
(1934). This article is still considered to be one ot 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 (1951). Also, see Jerome N. Frank, I889-I957,
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.
must be clearly separated, at least for purposes of analysis. 1

And this is where the real trouble begins. Pound, for example,
argues that if values are left out of the picture (even for analytical
purposes), then the judicial process is examined in a distorted and
unrealistic light. Frank and Llewellyn argue that this is not the
case, but even realists such as Felix Cohen (even if he is called a
right-wing "rule-skeptic" by Frank) think that the legal realists
must face up to the fact that such a separation poses many
dangers which some realists have been unable to avoid. Across the
troubled waters of this legal controversy, one is reminded of the
Biblical proverb, " ... as ye sow, so ... "
Julius Stone is one of the more brilliant of the modern legal
writers who has written extensively on the problem of the "is"
and the "ought" of the jural order. He says:
At the outset it is well to make the distinction, oversight of which, in the

present writer's opinion, may have made much of the Pound-Llewellyn
disputation unreal. A court's view of what ought to be - the social ideal,
or the theory of justice, or "policy," with which it approaches a case before it,
may undoubtedly in many instances affect the result. Now from the
point of view of the court itself its decision was influenced by a con-
ception of what ought to be. From the point of view, however, of a his-
torian or a research worker, who is seeking to understand the decision,
that "ought" becomes an "is" - for him it is not the validity of the
"ought" which is important, but the fact that the court accepted that
"ought" and thereby allowed its decision to be affected. So in this latter
sense, Professor Pound has repeatedly insisted that the "received ideals"
of the common law are a part of our legal materials, just as much as are
particular precepts. In other words, his point is that the ideals of the
actors as to what the law ought to do are a vital part of the observable
facts .... 2
1 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 passion'
ate.... " Frank, "The Scientific Spirit and Economic Dogmatism," in Science Fot'
Democracy: Papers From the Conferences on the Scienti/ic 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 anll Social Con-
trol 382-83 (1946). C/., Jerome Hall, Studies in Jurisprudence anll Criminal Theot''Y
29-31, 119-21, 136-38 (1958).
I would agree with Stone that the ideals that men live by and
act upon are as much a part of what Frank regards as the "facts"
(legal reality) as are the actions of courts or judges or juries. This
fact was brought home long ago by Eugen Ehrlich, and later by
Max Weber, Roscoe Pound, and others. 1 Fact and value are an
inseparable part of all legal activity. The disregard or the mini-
mization ofthis element in the judicial process was, in my opinion,
one of the major weaknesses of Jerome Frank's philosophy of
law.
If Professor Llewellyn's call for divorce of the "is" from the "ought"
were read to mean that the observer should ignore that part of the facts
(for instance, of judicial decision) which consists of the ideals which actu-
ally move or are likely to move the actor (that is, the court), what A.
D. Lindsay terms "the operative ideals," it would clearly be unsound. It
is not believed that he intends to go so far. For the most part it is clear
that he is asking not tor the abserver to ignore the actor's ideals, but tor the
observer to put aside his own so that the accuracy of his observation and
description shall not be interfered with .... To summarize, then, in-
quiries into the ideals of justice, to which men feel impelled to conform,
"what these ideals are, whence they come, and whither they lead," are
part of the data of sociological jurisprudence above defined .... 2
Can a judge's actions be separated from the values upon which
he bases his decisions? This is a crucial question for modem
jurisprudence, and it is this writer's opinion that most legal
realists, including Jerome Frank, have not sufficiently studied it.
Other writers on legal realism take a somewhat different view. 3
The methodological problem would be simple indeed if Llewel-
lyn's naive notion of what the problem entails were accepted:
Meantime, the fusion and confusion of Is and Ought is so unnecessary.
All that the social scientist need do is, in his writing, as in his thinking, to
mark off for the reader's observation and for his own the place where his
science ends and his prudence begins. We all recognize the difference be-
tween a statement of established facts based on a thorough investigation
1 Ct., " ... 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).
2 Stone, op. cit. supra p. 144, at383. See Ehrlich, FundamentalPl'inciples ot the Soci-
ology ot Law 202 (Moll trans!. 1936).
3 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 (\935).
(Inserted quotation from George H. Sabine, "The Pragmatic Approach to Politics,"
24 Am. Pol. Sci. Rev. 865, 875 (\930).
and a statement of the probable or suggested facts based on a fragmentary
canvass .... 1
Even if the pragmatic, contingent nature of legal realism is
advanced as a defense of their position, this does not adequately
answer the critics who raise metaphysical questions. For trouble-
some value-judgments always seem to enter, and not only in the
cases where mere "probabilities" are involved.
Questions of probability, like questions of validity, are to be decided en-
tirely on objective considerations, not on the basis of whether we feel an
impulse to accept a conclusion or not. 2
These "feelings" about the facts nearly always tend to color in-
vestigations of factual phenomena, especially when the observer
is both the fact-gatherer and the fact-assessor. And in the field of
jurisprudence, where fact and value are so closely intertwined, the
problem of unravelment is exceedingly difficult.
The real issue is not whether factual knowledge is necessary for a moral
judgment but whether it is sufficient without a distinctly ethical premise.
Can we from a number of premises which describe what is, deduce a
conclusion which prescribes what ought to be? Reflection shows this to be
logically impossible and morally confusing. 3
Value-free judgments about the legal order would necessitate

complete neutrality. But this is not easy to accomplish in law or
in any other social science. Perhaps the legal realists, in their zeal
to get at the roots of legal behavior, at the facts (whether they be
SUbjective or objective), have failed to see fully the element of
flux in the legal order. In their desire for legal actuality and
1 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 con-
sidered "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. Ct. 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 intel-
lectual enterprises in which the right answer has to be obtained is not the method
but the sub;ect matter .... " Bridgman, "the Prospect For Intelligence," 34 Yale Rev.
444,450 (1945). (Emphasis added).
S Morris Cohen and Ernest Nagel, An Intl'oduction to Logic and Scientt[ic Method
(N.Y.: Harcourt, Brace, 1934), p. 157.
3 Morris Cohen, Book Review of Robinson's Law and the Lawyers, 22 Cornell L.Q.
171,176 (1936). Ct. Frank, "Mr. Justice Holmes and Non-Euclidean Legal Thinking,"
17 CornellL.Q. 568 (1932), where Frank decries the confusion over the Is and the Ought.
reality, they have not always been able to distinguish the varie-
gated elements that comprise the judicial process. 1
Nor have the legal realists always appreciated the interactive
elements within that process. Having lost their sense of historical
tradition and continuity, they had only facts to rely on, but facts
can never establish a system of relationships without being
ordered by an observer. Facts by themselves are meaningless. 2
One of the weaknesses of the school of legal realism was not
only their zeal for facts, but also their over-emphasis on facts in
themselves, without a correspondingly acute appreciation of the
relations betwen fact and value. Morris Cohen thought that this
approach was itself an absolutist one, and he constantly warned
the legal realists about their blind reliance on the one segment of
the legal order that they thought vital, namely, the area of legal
action.
The law is not in fact completed, but a growing and self-correcting system.
It grows not of itself but by the interaction between social usage and the
work of legislatures, courts, and administrative officials and even legal
text writers. In this growth the ideas which people have of what the law
is and how it ought to grow are not without influence, though obviously
inadequte for complete control of all future decisions. The logical error of
absolutism is the same in the revolutionary as in the conservative camp -
the love of undue simplicity. Metaphysically this shows itself in the
1 On the question of functional jurisprudence and the prOblem of legal certainty,

see the following: Flavio Lopez de Onate, La certezza del diritto (Rome, 1950); Nor-
berto Bobbio, "La certezza del diritto e 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).
2 "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).
assumption of absolute linearity of determination between universals and

particulars, principles and actual decisions. But from universals alone we
cannot determine particulars, and the latter cannot completely determine
the former. 1
Perhaps this entire discussion of fact and value in jurisprudence
is out of order, since no definition of the scope of jurisprudence
has been advanced in this study. Is Jerome Frank a legal philoso-
pher, and can his work be subsumed under the label, "juris-
prudence"? What exactly do we mean when we use this term?
... Though the term "Jurisprudence" may conceivably and with justifi-
cation be employed to denote much else, in this study the term is taken to
mean recorded thinking about the source, nature, end and efficacy of law,
substantive and adjective, and of legal institutions. 2
George W. Paton uses a somewhat different definition of the
term "jurisprudence":
It is absurd to suggest that there is only one useful path for jurisprudence to
tread ... In short, jurisprudence is a functional study of the concepts which
legal systems develop, and ofthesocial interests which law protects. This
seems to the writer the most useful approach, though the findings of other
schools cannot be ignored. 3
If we accept Reuschlein's definition of jurisprudence, then
Jerome Frank's writing is deficient in one respect, viz., his lack of
conscious concern for the ends of law. Can Frank be classified as a
legal philosopher if he leaves out the problem that law has always
posed for men of ideas: the problem of justice? To this accu-
sation, Frank and the legal realists would plead "not guilty," for in
their zeal for improvement of the legal system, they have always
concerned themselves with the problem of justice. Frank ex-
plained this in his statement that -
Actually, these so-called realists have but one common bond, a negative
characteristic already noted: skepticism as to some of the conventional
legal theories, a skepticism stimulated by a zeal to reform, in the interest
of justice, some court-house ways ..... 4
1 M. R. Cohen, "On Absolutisms in Legal Thought," 84 U. Pa. L. Rev. 681,
691-92 (1936).
2 Harold G. Reuschlein, j urispruden&e -Its A merican Prophets: A Survey of Taught
jurisprudence v (1951).
a Paton, A Text-Book of jurisprudence 31-32 (1st ed. 1946).
4 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
RepouUi.e v. U.S., 165 F. 2d 152, 154-155 (2d Cir. 1947).
Even under Paton's definition of jurisprudence, Frank's work

would apparently be lacking, since he is not concerned with
social interests, but in how the legal order operates in the protec-
tion of these interests. But what are "social interests"? And how
is it possible for a philosopher like Frank to incisively examine the
legal order and to come forth with numerous suggestions for
reform without some kind of guideposts, whatever the label?
Perhaps the answer can be found in the language of value, with-
out necessarily bordering on what Frank derisively called
. ·verbomania."
But the semantics of jurisprudence can become confusing and
deceptive. "Values," "social interests," "justice," "ends of law,"
and similar terms are not missing from Frank's legal philosophy if
one carefully examines the foundations of his thought. His
skepticism and eclecticism were not evidences of a disbelief in
values, but of a distaste for any absolute system of values or social
ends. His pragmatic bent could enable him to choose the "best"
that he could find in any area of life. Certainly, his life-long con-
cern for the operation of the legal system, particularly in the area
of criminal justice, clearly evidenced his fervent belief in the
values of the democratic system and its ever-widening possibili-
ties for enhancing human personality and development. "There-
in the dignity of individual human beings - was the very core
of Jerome Frank's religion ... " 1
The question of whether legal values (or any values) are relative
or absolute was not really the basic question for Jerome Frank.
The heart of the matter was the process by which we reassessed,
clarified, and expanded these values, and kept open the avenues
for discovering new values or new interpretations of old values. 2
What Frank vehemently decried was not the belief in values, but
the belief in superstition and dogma and the almost fanatical
attempts by some people to superimpose their values on others.
1 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).
2 " ••• His seeming iconoclasm was rooted in his zealous loyalty to the realization
that the history of thought, particularly sociological thought, is the history of con-
tinuous displacement of erroneous dogma." Felix Frankfurter, "Jerome N. Frank,"
24 U. Chi. L. Rev. 625 (1957).
By any standard or definition of jurisprudence, Jerome Frank's

role as a supreme provocateur on the American legal scene has
been of immeasurable value to the growth of our ideas on the
function of law in society. While his was not a systematic or
definitive philosophy of law, it had the greater virtue of being
broad in)ts scope and its inherent iconoclasm. Professor Edmond
N. Cahn summed it up in this way:
... I believe that Jerome Frank's fact-skepticism represents an epoch-
making contribution not only to legal theory and procedural reform,
but also to the understanding of the entire human condition. The history
of our time will record whether we profited by the challenges he be-
queathed to us. 1
This was indeed a fitting tribute to a truly creative legal mind,

a mind that was constantly aware of the ambiguities of man's
existential situation, while at the same time passionately reaffirm-
ing its faith in the power of human reason. 2 Jerome Frank
deserves a well-earned place in the histOl'y of the liberal tradition.
1 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 ..... I never heard him speak of 'eternal principles' or of 'values which are ever-
lasting,' 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 continnity 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).
Some Selected Opinions of Judge Jerome Frank
But the courts are not utterly helpless; such
judicial impotence has its limits. Especially when
an issue importantly affecting a man's life is
involved, it seems to me that we need not, and
ought not, resort to our mere unchecked surmises,
remaining wholly (to quote my colleagues'words)
"without means of verifying our conclusions."
Because court judgments are the most solemn
kind of governmental acts - backed up as they
are, if necessary, by the armed force of the govern-
ment - they should, I think, have a more solid
foundation. I see no good reason why a man's
rights should be jeopardized by judges' needless
lack of knowledge.
JUDGE JEROME N. FRANKl
1 Dissenting opinion in RepoviUe v. United States,

165 F. 2d 152, 154 (2d eir. 1947).
In attempting to systematize and critically evaluate the legal
thinking of Jerome Frank, I deliberately ignored the opinions
that he issued as a Federal Circuit Court Judge from 1941-1957.
Since I was interested in his legal philosophy as it emerged from
his published writings, I did not concern myself with his role as a
judge. Had I been interested in a genuine study in the sociology ot
law, it would have been necessary to compare Frank's philosophy
of law in his treatises and articles on law with his opinions as a
judge. Moreover, since Judge Frank was an appellate judge,
his opinions would require a comprehensive assessment of the
facts of each case as they were developed at the trial court level.
It is significant, however, that in many cases, Judge Frank
used his case notes for citing philosophical and historical works
(as well as his own and other realistic writings). As could be
expected, the subjects that interested Judge Frank in the cases
that I have selected were trial court fact-finding, precedents,
judicial legislation, judicial impartiality, judicial interpretation
and discretion, trial-by-combat, jury trials, judicial psychology,
legal fictions, legal rules, legal semantics, procedural rights, and
procedural reforms. Except where these subjects are directly related
to his opinion, Judge Frank's comments are for the most part the
obiter dicta in these cases. It is my opinion that much of Jerome
Frank's philosophy of law can be found in his voluminous case
notes, as well as in the body of his major opinions. And it is this
writer's opinion that there is a striking symmetry between his
legal ideas as they developed in the years before and after his
entrance on the bench in 1941 and the opinions that he wrote.
Jerome Frank represented in a very articulate and at times

eloquent sense the kind of adult jurist that he described in his
own writings. His achievements as a judge on one of the greatest
courts in the country gave concrete practical meaning to one of
the most unusual and seminal careers in contemporary American
law, and brought to fulfillment the ideas of the country's out-
standing legal realist.
ON PRECEDENTS
In re Barnett, 124 F. 2d 1005, 1011 (2d Cir. 1942).

Aero SPark Plug Co. v. E.G. Corp., 130 F. 2d 290, 294-99, 298 n. 26
(2d Cir. 1942). Concurring opinion.
ON TRIAL COURT FACT-FINDING
Wabash Corp. v. Ross Electric Corp., 187 F.2d 577, 586, 601-04
(2d Cir. 1951).
United States v. Rubinstein, 151 F. 2d 915,920 nn. 4 & 5 (2d Cir. 1945).
Dissenting opinion.
La Touraine Collee Co. v. Lorraine Collee Co., 157 F.2d 115, 123-24
(2d Cir. 1946). Dissenting opinion.
Zell v. American Seating Co., 138 F.2d 641, 646, 647 n. 20b, 648,
(2d. Cir. 1943). On the concept of "objectivity."
ON LEGAL RULES AND LEGAL CERTAINTY
Guisseppi v. Watling, 144 F. 2d 608,621-22 n. 38 (2d Cir. 1944).

Ricketts v. Pennsylvania R. Co., 153 F. 2d 757, 760, 761, 769 (2d Cir.
1946). Concurring opinion.
In re Fried et at., 161 F. 2d 453,462 n. 21, 464 (2d Cir. 1947).
Repouille v. U.S., 165 F. 2d 152, 154-55 (2d Cir. 1947). Dissenting
opinion that treats the problem of the unattainability of legal
certainty as it affects the moral dilemmas that face judges, in this case
the relation of euthanasia to naturalization requirements.
ON LEGAL HISTORY, "PERIODIZATION," AND ZEITGEIST
United States v. Forness et at., 125 F. 2d 928,935,942 (2d Cir. 1942).

Also deals with the problem of judicial fact-finding.
M. Witmark & Sons v. Fred Fisher Music Co. et at., 125 F. 2d 949,
964 (2d Cir. 1942). Dissenting opinion.
Hume v. Moore-McCormack Lines, 121 F .. 2d 336 (2d Cir. 1941). This
case deals primarily with maritime legal history.
SOME SELECTED OPINIONS ISS
ON THE ROLE OF THE TRIAL JUDGE
United States v. Antonelli Fireworks Co., 155 F. 2d 631, 642, 655

(2d Cir. 1946). Dissenting opinion that deals with the problem of
finding grounds for upsetting trial or lower court decisions. McAllister
v. Commissioner of Internal Revenue, 157 F. 2d 235, 237, 240 n. 6
(2d Cir. 1946). Dissenting opinion which discusses the problem of
judicial discretion, especially extrapolation and interpolation.
Commissioner of Internal Revenue v. Beck's Estate et al., 129 F.2d
243,245 n. 4, 246 (2d Cir. 1942).
Hentschel v. Baby Bathinette Corp., 215 F. 2d 102, 112 n. 20 (2d Cir.
1954). Dissenting opinion that discusses the problem of having to
choose between competing interests and values. In re J. P. Linahan,
Inc., 138 F. 2d 650, 651-54 (2d Cir. 1943). On judicial bias and the
problem of impartiality.
ON THE PROBLEM OF TRIAL BY JURY
United States v. Liss, 137 F. 2d 995, 1001-05 (2d Cir. 1943). Dissenting
opinion.
United States v. St. Pierre, 132 F. 2d 837, 849 n. 40 (2d Cir. 1942).
Dissenting opinion that discusses trial-by-combat.
Skidmore v. Baltimore & O.R. Co., 167 F.2d 54 (2d Cir. 1948). This
entire opinion discusses the problem of general verdicts and special
or fact verdicts.
Slifka et. at. v. Johnson, 161 F.2d 467, 470 (2d Cir. 1947). On the
hearsay evidence rule and judicial fact-finding. Concurring opinion.
ON GESTALT FACTORS IN THE JUDICIAL PROCESS AND PSYCHOLOGY
Old Colony Bondholders v. New York, N.H. and H.R. Co., 161 F. 2d
413,431,449-50 (2d Cir. 1947). Dissenting opinion. Roth v. Goldman,
172 F. 2d 788,790-93 (2d Cir. 1949). On psychological studies re law.
Concurring opinion. United States ex rel. Accardi v. Shaughnessy,
219 F. 2d 77,81 (2d Cir. 1955). Discusses the effects of "unconscious"
factors on witnesses.
ON LEGAL FICTIONS AND NATURAL LAW
United Shipyards, Inc. v. Hoey, 131 F. 2d 525,526,527 n. 5 (2d Cir.

1942). On legal fictions.
Beidler & Bookmyer v. Universal Ins. Co., 134 F. 2d 828, 830 n. 7
(2d Cir. 1943). On natural law.
ON LEGAL TERMINOLOGY AND LEGAL SEMANTICS
Hottman v. Palmer et al., 129 F. 2d 976,986 (2d Cir. 1942). Andrews

v. Commissioner 01 Internal Revenue, 135 F. 2d 314, 317 (2d Cir. 1943).

On the meaning of the word "value."l
ON CRIMINAL PROCEDURE, THE "THIRD DEGREE," AND CIVIL RIGHTS
United States v. Rosenberg, 195 F. 2d 583 (2d Cir. 1952). A detailed and
carefully prepared opinion that discusses a whole series of procedural
questions including the defendants' contention that the death penalty
constitutes a "cruel and unusual punishment."
United States v. Costello, 221 F.2d 668, 679-80 (2d Cir. 1955). Con-
curring opinion that discusses the problem of the admissibility of
evidence, the hearsay evidence rule, and other procedural questions.
United States ex reI. Caminito v. Murphy, 222 F. 2d 698 (2d Cir. 1955).
A vigorous opinion that deals with the problem of "third degree"
police methods.
United States v. Gordon, 236 F.2d 916 (2d Cir. 1956). An opinion
dealing with the problem of self-incrimination and overzealous
prosecutors.
United States v. Ford, 237 F. 2d 57, 70-75 (2d Cir. 1956). A vigorous
dissenting opinion dealing with the admissibility of evidence.
United States v. Roth, 237 F. 2d 796,801-27 (2d Cir. 1956). An eloquent
concurring opinion dealing with First Amendment freedom of press
that includes a brilliant appendix (pp. 806-27) that analyzes the
history of obscenity legislation in America. 2
1 Judge Frank's discussion of the touch·and-go nature of legal language was

cited in an opinion by United States District Judge Oliver J. Carter in Acme Breweries
v. Brannan, 109 F. Supp. 116, 117 (N.D. Cal. 1952).
B For those who are interested in a bibliography of Judge Frank's Second Circuit
opinions, see 24 U. elli. L. Rev. 706 note (1957).
A Bibliography of the Writings of
Jerome N. Frank
BOOKS
Frank, jerome, Not Guilty (with Barbara Frank). Garden City:

Doubleday & Company, Inc., 1957.261 pp.
- - , Courts on Trial; Myth and Reality in American Justice. Prince-
ton: Princeton Univ. Press, 1949.441 pp.
- - , Fate and Freedom; A PhilosoPhy For Free Americans. N.Y.:
Simon & Schuster, 1945; rev. ed., Boston: Beacon Press, 1953.
375 pp.
- - , It Men Were Angels. N.Y.: Harper & Brothers, 1942.380 pp.
- - , Save America First. N.Y.: Harper & Brothers, 1938.432 pp.
- - , Law and the Modern Mind. N.Y.: Coward-McCann and Bren-
tano's, Inc., 1930. 368 pp.
ARTICLES, ESSAYS, AND MISCELLANEOUS WRITINGS
Frank, jerome, "Some Reflections on judge Learned Hand," 24

U. Chi. L. Rev. 666 (1957). Published posthumously.
- - , "Civil Law Influences on the Common Law - Some Re-
flections on 'Comparative' and 'Contrastive' Law," 104 U. Pa. L.
Rev. 887 (1956). Address.
- - , "The Lawyer's Role in Modern Society: A Round Table,"
4 J. Pub. L. 1,8 (1955).
- - , "A Conflict With Oblivion: Some Observations on the Foun-
ders of Legal Pragmatism," in the jurisprudential Symposium in
Memory of Felix S. Cohen, 9 Rutgers L. Rev. 355, 425 (1954).
- - , "Today's Problems in the Administration of Criminal justice,"
15 Fed. R.D. 93, 95 (1953). Address.
- - , "Some Tame Reflections on Some Wild Facts," in Sidney
Ratner (ed.), Vision and Action: Essays in Honor ot Horace M.
Kallen On His 70th Birthday. New Brunswick: Rutgers Univ.
Press, 1953, pp. 56-82.
A BIBLIOGRAPHY OF HIS WRITINGS 159
, "Judicial Fact-Finding and Psychology," 14 Ohio St. L.J.

183 (1953); repr. in condensed form in 59 Case and Com., Jan.-
Feb. 1954, pp. 16-21. Address.
- - , Introduction to Hoffman and Brodley, "Jurors on Trial,"
17 Mo. L. Rev. 235 (1952).
- - , Introduction to Louis H. Cohen, Murder, Madness and the Law.
Cleveland & N.Y.: World Publishing Company, 1952.
- - , Book Review of Seagle, Law: The Science of Inefficiency,
5 J. Legal Ed. 223 (1952).
- - , "Interpretation - Parol Evidence - Mistake," in Corbin On
Contracts: A Symposium Review, 61 Yale L.J. 1092 (1952).
- - , "Both Ends Against the Middle," 100 U. Pa. L. Rev. 20 (1951).
- - , " 'Short of Sickness and Death': A Study of Moral Responsibili-
ty in Legal Criticism," 26 N. Y. UL Rev. 545 (1951).
- - , "Memorable Victories in the Fight for Justice," 30 Life, Mar.
12, 1951, at 86.
- - , Book Review of Cairns, Legal PhilosoPhy From Plato to Hegel,
25 Ind. L.J. 231 (1950).
- - , Book Review of Bienenfeld, Rediscovery of Justice, 38 Calif.
L. Rev. 351 (1950).
- - , "Something's Wrong With Our Jury System," 126 Colliers,
Dec. 9, 1950, at 28.
- - , "Modern and Ancient Legal Pragmatism - John Dewey & Co.
vs. Aristotle," 25 Notre Dame Law. 207,460 (1950).
- - , "A Disturbing Look at the Law Schools," 2 J. Legal Ed. 189
(1949) .
- - , "Legal Thinking in Three Dimensions," 1 Syracuse L. Rev.
9 (1949). New intr. to Law and the Modern Mind (1949 ed.).
- - , "The Case For the Special Verdict," 32 J. Am. Jud. Soc'y
142 (1949). From his Skidmore opinion (1948).
- - , "The Place of the Expert in a Democratic Society," 16 Philos.
of Sci. 3 (1949).
- - , Book Review of Morgenthau, Scientific Man vs. Power Politics,
15 U. Chi. L. Rev. 462 (1948).
- - , "Cardozo and the Upper-Court Myth," 13 Law & Contemp.
Prob. 369 (1948).
- - , "Say It With Music," 61 Harv. L. Rev. 921 (1948).
- - , "Judge Jerome Frank on Censorship and the Constitution,"
155 Publishers' Weekly 1156 (Mar. 5, 1949). Excerpts from his
opinion in Roth v. Goldman, 172 F. 2d 788 (2d Cir. 1949).
- - , Book Review of Pirsig, Cases and Materials on Judicial Adminis-
tration, 56 Yale L.J. 589 (1947).
- - , "A Plea For Lawyer-Schools," 56 Yale L.J. 1303 (1947).
- - , "Self-Guardianship and Democracy," 16 American Scholar 265
(1947). Editorial.
- - , "Words and Music: Some Remarks on Statutory Interpre-
tation," 47 Col. L. Rev. 1259 (1947).
- - , "A Sketch of an Influence," chap. X in Paul Sayre (ed.),

Interpretations of Modern Legal Philosophies; Essays in Honor
of Roscoe Pound. N.Y.: Oxford Univ. Press, 1947, pp. 189-261.
- - , "The Scientific Spirit and Economic Dogmatism," in Jerome
Nathanson (ed.), Science For Democracy; Papers From the
Conferences on the Scientific Spirit and Democratic Faith. N.Y.:
King's Crown Press, 1946, pp. 11-21.
- - , Fact-Finding. New Haven: Yale Law School, 1946. Mimeo-
graphed materials privately printed for use in Judge Frank's
courses at the Yale Law School.
- - , Book Review of Friedmann, Legal Theory, 59 Harv. L. Rev.
1004 (1946).
- - , "The Cult of the Robe," 28 Sat. Rev. of Lit., Oct. 13, 1945, at 12.
- - , Book Review of de Tocqueville, Democracy in America, 6 Fed.
B.J. 455 (1945).
- - , "The New Sin," 28 Sat. Rev. of Lit., Dec. 22, 1945, at 3.
- - , "War Crimes," 116 Colliers, Oct. 13, 1945, at 11.
- - , "Overhauling the Cabinet," 29 Fortune, Jan. 1944, at 88.
- - , "Women Lawyers," 119 Good Housekeeping, Dec. 1944, at 43;
31 Women Lawyers' J. 4 (1945).
- - , Book Review of Calhoun, Introduction to Greek Legal Science,
57 Harv. L. Rev. 1120 (1944).
- - , Book Review of Pound, Outline at Lectures on Jurisprudence,
52 Yale L.J. 935 (1943).
- - , (under the pseudonym, Anon Y. Mous of Middletown) "The
Speech of Judges: A Dissenting Opinion," 29 Va. L. Rev. 625
(1943).
- - , "White Collar Justice," 216 Sat. Eve. Post, July 17, 1943, at 22.
- - , "Thoughts on Patents," 24 J. Pat. Off. Soc'y 808 (1942).
- - , "When 'Orner Smote 'Is Bloomin' Lyre," 51 Yale L.J. 367
(1942). Reprinted in If Men Were Angels (1942), at 223-35.
- - , "What's Wrong With Our Patent System?" 215 Sat. Eve. Post,
Nov. 20, 1942, at 20.
- - , "Epithetical Jurisprudence and the Work of the Securities and
Exchange Commission in the Administration of Chapter X of
the Bankruptcy Act," 18 N.Y.U.L.Q. Rev. 317 (1941).
- - , Book Review of Douglas, Democracy and Finance, 54 Harv. L.
Rev. 905 (1941).
- - , "A Lawyer Looks at Language," in S. 1. Hayakawa, Language
inAction. N.Y.: Harcourt, Brace, 1941 rev. ed., note, pp. 322-36.
- - , "Red, White and Blue Herring," 214 Sat. Eve. Post, Dec. 6,
1941, at 9.
- - , Letter from Jerome Frank, Chairman of the S.E.C. to Walter
Gellhorn, in Administrative Procedure in Government Agencies,
Monograph of the Attorney General's Committee on Adminis-
trative Procedure, S. Doc. No. 10, 77th Cong., 1st Sess., pt.
13, app. F (1941) at 132-36.
A BIBLIOGRAPHY OF HIS WRITINGS 161
- - , "Mr. Frank Replies," 212 Sat. Eve. Post, June I, IS, 1940, at 26.
Portrait, 212 Sat. Eve. Post, Mar. 30, 1940, at 11.
- - , "Can Business and Government Work Together?" 5 Town
HaU, No.9 (1939), at 21.
- - , "Accounting For Investors," 7 The Controller 380 (1939), repro
as "Accounting For Investors; The Fundamental Importance of
Corporate Earning Power," 68 ]. Accountancy 295 (1939).
Address.
- - , Introduction to Randolph E. Paul, Studies in Federal Taxation.
Chicago: Callaghan & Company, 1937, at 5.
- - , "Lawlessness," 9 Encyc. Soc. Sci. 277 (1935).
- - , "Experimental Jurisprudence and the New Deal," in the
Handbook of the Association of American Law Schools, Report of
the Thirty-First (1933) Annual Meeting of the Association, at
101; repro in slightly revised form in 78 Congo Rec. 12412 (1942);
repro under the title, "Realism in Jurisprudence," 7 Am. L. School
Rev. 1063 (1934). Address.
- - , Book Review of Berle and Means, The Modern Corporation and
Private Property, 42 Yale L.J. 989 (1933).
- - , "Some Realistic Reflections on Some Aspects of Corporate
Reorganizations," 19 Va. L. Rev. 541, 698 (1933).
- - , "Realistic Reflections on Law as a Constructive Social Force,"
in the Proceedings of the National Conference of Social Work,
Detroit, Michigan, 1933. Chicago: Univ. of Chicago Press,
1933, pp. 326-32.
- - , "Why Not a Clinical Lawyer-School?" 81 U. Pa. L. Rev. 907
(1933).
- - , "What Constitutes a Good Legal Education?" 19 A.B.A.].
723 (1933); repro in 7 Am. L. School Rev. 887, 894 (1933).
- - , (with William O. Douglas), "Landlords' Claims in Reorgani-
zations," 42 Yale L.J. 1003 (1933).
- - , "What Courts Do In Fact," 26 Ill. L. Rev. 645,761 (1932).
- - , "Mr Justice Holmes and Non-Euclidean Legal Thinking,"
17 Cornell L.Q. 568 (1932).
- - , "Are Judges Human?" 80 U. Pa. L. Rev. 17,233 (1931).
- - , Book Review of Karl N. Llewellyn, The Bramble Bush: Some
Lectures on Law and Its Study, 40 Yale L. J. 1120 (1931).
UNPUBLISHED ADDRESSES
(Unless Otherwise Noted)
Frank, Jerome, "The Sin of Perfectionism," American Institute of

Accountants, October 18, 1940. Reprinted in Experiences With
Extensions of Auditing Procedure and Papers on Other Accounting
Subjects (1940).
- - , "Fairness and Feasibility," Association of the Bar of the City

of New York, March 27, 1940.
- - , "Advance Administrative Decisions," Association of the Bar of
the City of New York, May 5, 1939.
- - , "The SEC and the Rubber Hose," Chicago Bar Association,
April 8, 1939. Reprinted in It Men Were Angels (1942) at 316-31.
- - , "Administrative Flexibility or Industrial Paralysis," George-
town Alumni Club. Washington, D.C., November 9, 1938.
- - , "Too Much Interest in Interest," National Association of Se-
curities Commissioners, September 22, 1938.
- - , "What's Wrong With the Law Schools?" Washington, D.C.,
September 15, 1938.
- - , "Corporate Reorganization and the Chandler Act," Adminis-
trative Law Section, American Bar Association, July 25, 1938.
- - , Lectures delivered at the New School For Social Research,
New York City, 1931. Incorporated in Save America First (1938).
General Works Used in this Study
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Hutcheson, Joseph C. Jr. "The Judgment Intuitive: The Function of the
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Hutchins, Robert M. "Legal Education," 4 U. Chi. L. Rev. 357 (1937).
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Kantorowicz. Hermann. "Some Rationalism About Realism," 43 Yale L.

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Kaplan, Benjamin. "The Lawyer's Role in Modem Society; A Round
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Kessler, Friedrich. "Jerome N. Frank (1889-1957)," a memorial tribute
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Keyserling, Leon H. "Social Objectives in Legal Education," 33 Col. L.
Rev. 437 (1933).
Knox, John C. "Just Justice," 216 Sat. Eve. Post, July 24, 1943, at 22.
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Konvitz, Milton R. Book Review of It Men Were Angels, 56 Harv. L. Rev.
1020 (1943).
Kurland, Philip B. "Jerome N. Frank: Some Reflections and Recol-
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"The Language of Law: A Symposium," 9 Western Res. L. Rev. 115-98
(1958). Various articles.
Lasswell, Harold D. "Self-Analysis and Judicial Thinking," 40 Int'l J.
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Lasswell, Harold D. "Impact of Psychoanalytic Thinking on the Social
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"Legal Philosophy," 44 Va. L. Rev. 315-439 (1958). Various articles.
Lehman Milton. "The Rosenberg Case: Judge Kaufman's Two Terrible
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Lins, Mario. "The Sociological Foundations of Law," paper presented at
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- - . "Search For the Functional Invariants of Law," essay privately
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L. Rev. 431 (1930).
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- - . "Some Realism About Realism - Responding to Dean Pound," 44
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174 GENERAL WORKS USED IN THIS STUDY
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Sociology, ed. and transl. by H. H. Gerth and C. Wright Mills. N. Y.:
Oxford Univ. Press, 1946, at 216-21.
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Rev. 311 (1954).
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Ind. L.J. 133 (1955).
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Society: A Symposium, 1956 U. Ill. L. Forum 220 (1956).
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Rev. 470 (1958).
Index
Adler, Mortimer J.: on Frank, 36n Cohen, Morris R.: quoted, 14; on
Anthropology: and the study of law, Frank's use of psychology, 63n,
22,112-14 64n; quoted, on Law and tke Mo-
Arnold, Thurman W.: quoted, 14, 48; dern Mind, 122n; criticism of legal
answer to Mechem, 136; quoted, on realism, 147-48
Fate and Freedom, 140n Commager, Henry S.: quoted, on re-
Aronson, Moses J.: quoted, on soci- volt against mechanistic doctrines
ological jurisprudence, 20n; quoted, in law, 17n
on legal realism, 27n Cowan, Thomas A.: quoted, on legal
Aumann, Francis R.: quoted, on the pragmatism, 16n
impact of technology, 15n; quoted,
on the legal realists and purpose, Davis, Elmer: on Frank's writing
145n technique, 134
Dewey, John: on the assault on logic
Beale, Joseph H.: and "Bealism," 37; and syllogistic reasoning, 18
Frank's attack on, 38--39 Dickinson, John: criticism of, by
Behavioristic jurisprudence. See Juris- Frank, 39; quoted, on nihilism in
prudence, psychological law, 92n; on legal education, 116n
Bingham, Joseph W.: quoted, on
definition of law, 4 Ehrlich, Eugen: on value judgments,
Bodenheimer, Edgar: criticism of legal 83n; on a science of law, 132n; on
realism, 142-43 legal ideals, 145
Bok, Curtis: on the jury system, 101
Bridgman, Percy W.: quoted, on "Fact"; and the problem of "value,"
scientific method, 146n 143--45. See also Values
Facts: search for objective, 74; and
Cahn, Edmond N.: on change in judicial fact-finding, 75. See also
Frank's philosophy, 124n; quoted, Judges
on skepticism, 128n; on Frank's Fact-skepticism: and tort law, ix-x;
religion, 149; on Frank's contri- and Cardozo's views, 131. See also
bution, 150 Rule-skepticism; Legal certainty;
Cardozo, Benjamin N.: quoted, 4; Legal rules
criticism of, by Frank, 81; on first Frank, Jerome N.: influence of, vii-
principles, 85; 1932 N.Y. State Bar viii, x-xi; as provocateur in Amer-
Association Speech, 131 ican jurisprudence, 5-6, 46--49, 150;
Clark, Charles E.: quoted, on Frank's biographical sketch of, 8-10; as
personality, 121n trail blazer in American law, 29-30;
Cohen, Felix S. : quoted, on functional and the realist-nominalist con-
approach, 65n; quoted, on Law and troversy, 36n, 132; as jurist, 48-49,
tke Modern Mind, 123n; criticism 153-54; on procedural reform, 86;
of legal realism, 133. See also Values on the "fight theory" of the court
176 INDEX
room, 87; definition of science, 114n; phantasy technique, 25n; and legal
contributions of, 119-20; and ele- education, 110
ments of philosophy of law, 121-24; Lawyer: task of, 73
and legal "axioms," 124-26; and Legal certainty: myth of, 33-38; and
proposed reforms, 126-28; and the rule-fetichism, 39, 57; and codi-
belief in the "non-absolute," 135; fication, 39-40; and religion, 41;
on legal certainty, 138-39; on Frank's attack on, 49
Aristotle and equity, 137; on natural Legal education, 106-111; and Lang-
law, 136-37n; and force, 139; on dell's approach, 107; and lawyer
the scientific method, 144n; as legal internships, 108; improvement of,
philosopher, 148-50 108-111; and the case method, 108;
Frankfurter, Felix: quoted, on Frank's and the inter-disciplinary approach,
iconoclasm, 149n 111-112; and special training for
Fuller, Lon L.: on philosophical ex- trial-court judges, 115
orcism, 65; on legal realism, 132-33 Legal positivism. See Oliver Wendell
Holmes
Green, Leon: on fact-skepticism and Legal realism; and the Scandinavian
tort law, vii-xi school, 120n; criticism of, 129-30;
Gurvitch, Georges: on the sociology contribution of, 139-40
of law, and legal realism, 64n Legal rules: Frank's view of, 33-49
passim, 132; existence of, 36; as
Hamilton, Walton H.: quoted, on guides to future decisions, 37, 71-72.
Law and the Modern Mind, 129n; See also Legal certainty
on Frank, 150n Legal semantics, 36, 38
Holmes, Oliver W.: quoted, 4; and Lewis, William Draper: on legal edu-
legal positivism, 16-18; quoted, on cation, III
cynical acid, 29n; as prototype of Llewellyn, Karl N. : quoted, on period
Frank's adult jurist, 90; and Frank's 1870-1900, 15n; quoted, on psycho-
contribution to American legal re- analytical theory, 26n; on behavior,
alism, 119-21 60-61 ; on the inter-disciplinary
Hutcheson, Joseph C.: on the judicial approach, 111-112; and The Bram-
"hunch," 79 ble Bush, 140-41; on the "is" and
Hutchins, Robert N.: on legal edu- the "ought," 145-56
cation, 110 Loevinger, Lee: criticism of Frank,
135-36
Judges: self-awareness of, 42, 88-91
Judicial "hunch," 78-80, 88 Mansfield, Harvey C.: quoted, on
Jurisprudence: sociological, 18-21; Frank's attack on Dickinson, 39n
psychological, 23-25; realistic, 28; McWhinney, Edward: on Frank as
contributions of psychological, 112; jurist, 48-49; on the U.S. Court of
definition of, 148-49. See also Legal Appeals for the Second Circuit, 120n
realism Methodology, 7-8; and the study of
Jury, trial by, 95-101; and usurpation law, 28-30; and tools of analysis,
of power of judges, 95-96; defects of, 63-65; and use of psychological
98-99; suggested reform of, 99-101; tools by Frank, 63-67 passim; on
and conviction of innocent men, "validity" of psychological tools,
101-103; verdicts and Cadi-justice, 67; and value judgments, 145-47
104-105 Morgan, Edmund M.: on Jerome
Frank, 134-35
Kantorowicz, Hermann: criticism of
legal realism, 143 Objectivity: of Judges, 86-87. See also
Knox, John C.: quoted, on pre-trial Facts; Judges
investigation, 98n; on perjury in
jury trials, 98 Patterson, Edwin W.: quoted, on
Roscoe Pound, 19n
Langdell, Christopher Columbus: Pound, Roscoe: and sociological juris-
attack by Frank on, 37, 106-107 prudence, 18-21; quoted, on pro-
Lasswell, Harold D.: quoted, on free- blem of "ought," 19n; on historical
INDEX 177
school, 20n; on sociological juris- Rodell, Fred: on judicial fact-finding,
prudence, 21n; on new realism, 24n; 77; on Frank as "compleat man,"
on "executive justice," 45; on 123
psychological method, 61n; on the Rule-skepticism: and fact-skepticism,
use of psychology in the study of 81-83. See also Legal certainty;
law, 62 Legal rules
Schroeder, Theodore: quoted, on
Pragmatism, 15, 16n; and positivism, psychoanalytical principles and law,
17; in sociological jurisprudence, 25n; Frank's comments on, 75; 112
19n; in Pound's philosophy of law, Sabine, George H.: quoted, on prag-
20-21; and politics, quoted in Sabi- matic tradition, 23n
ne, 23n; and "experimental juris- Science of law, 131-32; view of Eugen
prudence" in Frank, 28; and Frank's Ehrlich on, 132n
"temporary absolutes," 44; and free Seagle, William: on legal realism, 141
judicial decisions, 45; and American Shepard, Walter J.: quoted, 6n
legal realism, 119,130; and Frank's Skepticism, 58, 130, 148
"possibilism," 129; and legal prag- Sociological jurisprudence. See Roscoe
matists, 137; and the use of values Pound
in Frank's philosophy of law, 149 Stason, E. Blythe: quoted, on the
Probabilities: and father-authority, Frank-Pound controversy, 140n
43; and "temporary absolutes," 44- Stone,J ulius :on Frank's early writings,
45; and problem of certainty, 128- 37n; on the role of the judge, 85; on
29 Courts on Trial, 124n; on the "is"
Psychological jurisprudence. See Juris- and the "ought," 144-45
prudence, psychological; Psycho-
logy, and law Upper-court myth, 84-86. See also
Psychology: and law, 23-25; Jerome Judges
Frank's use of, 53-56; as therapy,
59; and Llewellyn's definition of Values: problem of, 19n; importance
behavior, 60-61; and psychiatry, of, 27; problem of "fact" and
61-62; and the study of the beha- "value," 30, 143-50 passim; and
vior of judges, 62. See also J uris- view of Felix S. Cohen, 65; and
prudence, psychological metaphysical questions, 90-92; in
law school curriculum, 109-110
Radin, Max: quoted, on law and the Vanderbilt, Arthur T.: on advocacy,
good society, 40n; 140 87
Reuschlein, Harold G.: quoted, on
legal positivism, 17n; quoted, on Weber, Max: quoted, on Cadi-justice,
sociological jurisprudence, 19n 105n; and legal ideals, 145
Rheinstein, Max: quoted, on myth of West, Ranyard: on the use of psycho-
legal rules, 27n; on the New J uris- logy in law, 60, 61, 63
prudence, 82-83n Wyzanski, Charles Jr.: on the use of
"Robe-ism", 89. See also Judges special verdicts, 100
and which his ideas, to a certain extent,
have helped to shape.
The primary source-materials for this
study consist of Jerome Frank's pub-
lished writings on law and politics and
the criticism of his works by prominent
men in the field of American juris-
prudence. It gives a fascinating insight
into one of the important facets of a
"many-splendored" personality, per-
haps the best and most forceful example
of the happy combination of a man
of ideas and action in the recent history
of American legal thought.
Biographical notes "" ]WIJ1'M New FraM
Bom in New York City, September 10, 1889_

Attended Hyde Park High School, Chicago - Degree
Ph. B., University of Chicago, 1909 - Degree
Doctor of Jurisprudence, University of Chicago
Law School, 1912 - Admitted to the Illinois Bar,
1912 - Lecturer at the New School for Social
Research, New York - Research associate at the
Yale Law School, 1932 - General counsel for the
Agricultural Adjustment Administration, 1933 -
General counsel for the Federal Surplus Relief
Corporation - Special counsel for the Reconatruc>
tion Finance Corporation and for the P. W. A.,
1935 - Commissioner on the Securities and Ex-
change Commission, 1937 - Chairman of the
S. E. C., 1939 - Judge of the United States Circuit
Court of Appeals for the second circuit, 1941-
1957 - Visiting Lecturer at the New School for
Social Research, 1946-1947 - Visiting Lecturer in
Law at the Yale Law School, 1946-1957 - Deceased
January 13, 1957.

The Legal Realism of Jerome N Frank A Study of Fact Skepticism and The Judicial Process

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The Legal Realism of Jerome N Frank A Study of Fact Skepticism and The Judicial Process

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This study is a systematic and critical

assessment of the ideas of a modern

THE LEGAL REALISM OF

Copyright I959 by Martinus Nijhoff, The Hague, Netherlands

Much of Frank's thinking was directed at tort litigation, for

facts in litigation by the substitution of practices requiring a

more and more frequently developed through scientific proof of

should be given a fair chance, its verdict accepted and not

With the deepest sense of appreciation, I want to acknowledge the

1957, pp. 28-37); "The Role of the Judge in Jerome Frank's

Throughout this study, I have used numerous words and phrases

"action approach" - Refers to those legal realists who stress

"conceptualist" - A term used by the legal realists to describe

"procedural reformers" - This term refers to those who believe

FOREWORD BY LEON GREEN VII

GLOSSARY OF WORDS AND PHRASES USED IN THIS BOOK XV

CHAPTER ONE - Foundations 01 american legal realism 13

CHAPTER TWO - The crusade against the "myth" 01 legal certainty 31

CHAPTER THREE - Psychology as the new weapon 01 attack 51

CHAPTER FOUR - The role 01 the judge in the judicial process 69

CHAPTER FIVE - Trial by jury and the problem of legal edu-

CHAPTER SIX - Frank's contributions to the philosophy of

SOME SELECTED OPINIONS OF JUDGE JEROME FRANK 151

A BIBLIOGRAPHY OF THE WRITINGS OF JEROME N. FRANK 157

GENERAL WORKS USED IN THIS STUDY 163

... In spite of all the irrefutable logic of the

1 Morris R. Cohen, Reason and Nature; An Essay

ful, colorful and active a career as that of Jerome Frank. Irre-

A SHORT NOTE ON METHODOLOGY

The reader ought to be forewarned about the danger of value-

it be said that I will make judgments about Frank's work, but

A BRIEF BIOGRAPHICAL SKETCH OF JEROME FRANK

May, 1941 until his sudden death on January 13,1957. In ad-

Foundations of American Legal Realism

I use the phrase "the law" in the sense of

... Law defines a relation not always between

1 Oliver Wendell Hoimes, Jr., "The Path of the Law,"

And law, which has always been considered a conserving force

HOLMES' LEGAL POSITIVISM:

The assult on logic and especially on syllogistic reasoning was

ROSCOE POUND'S SOCIOLOGICAL JURISPRUDENCE

Once the myth of mechanical legal rules was shattered, and

Law as an institutional means for social control, as a device that

The study of law required an entirely new viewpoint of man's

If the argument up to this point has been sound, we require an interpretation of

perimental" in its approach. But regardless of the label, the major

Douglas, Shanks, Bede, Means, Arnold, Hamilton and others

1 See William O. Douglas and C. M. Shanks, "Insulation From Liability Through

LEGAL REALISM AND THE

George W. Paton, reviewing the literature of modem juris-

functional approach to law. Paton places Roscoe Pound's socio-

JEROME FRANK'S CONTRIBUTION

Most of the legal realists could accept the contributions of Holmes

desire on the part of others to venture forth into unknown areas

The Crusade Against the ((Myth"

... It is a curious twentieth-century phenomenon

1 Law and the Modern Mind (N.Y.: Coward-McCann,

Here we arrive at a curious problem: Why do men crave an undesirable

Do lawyers deliberately and consciously deceive the public in

In an age of rapid social transformation, the lawyer is a useful

WHY DO MEN CRAVE LEGAL CERTAINTY?

One of the significant contributions of contemporary American

The basis for Frank's attack on the "myth" of rule certainty