Abstract
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.
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 decision, 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
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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.
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.
Id. at 167. Cf. “... 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 imposed, society would be impossible....” Edward H. Levi, An Introduction to Legal Reasoning (Chicago: University of Chicago Press, 1949), p. 1. 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 Modern Mind (1936).”
Frank, “Are Judges Human?” 80 U. Pa. L. Rev. 17, 36, 46, 47–48 (1931). By “contested case,” Frank means “a case in which 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,” 26 Ill. L. Rev. 645, 650 n. 10 (1932).
Schroeder, “The Psychologic Study of Judicial Opinions,” 6 Calif. L. Rev. 89, 93 (1918).
Law and the Modern Mind 114, 115. Regarding Schroeder, see the notes on pp. 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 predictable.” Id. at 117, note.
Courts on Trial 47. For a discussion of how the “unconscious” factors affect the judicial process, see the statement of Mr. Justice Frankfurter in Public Utilities Commission y. Pollak, 343 U.S. 451, 466–67 (1951).
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.
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-soinevitable obstacles to accurate fact-finding stem from one single basic root. That root is the adversary nature of all our courthouse government — our stubborn retention of a somewhat more civilized form of trial-by-combat as the foundation of all that we call law.” Id. at 118. Chapter VI and other portions of Courts on Trial which deal with “trial by combat” would certainly 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.
Frank, Courts on Trial 73–74. See Frank’s preface to the 6th printing of Law and the Modern Mind xiv-xv (1949); Courts on Trial, chaps. 12–13, 19, 23–24 (1949); and If Men Were Angels, chaps 7–8 (1942).
Cardozo, The Growth 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 fundamental 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.
In Francois Rabelais’ charming Five Books of the Lives, Heroic Deeds and Sayings of Gargantua and His Son Pantagruel, Pantagruel says: “’...But this continuation of Bridlegoose, for so many years, stilli 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 of Francis Rabelais, the Urquhart-Le Motteux translation, ed. by Albert J. Nock and Catherine R. Wilson (N.Y.: Harcourt, Brace and Co., 1931), p. 585.
Courts on Trial 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).
Cf. Poet Carl Sandburg’s view of this matter: “Who was the twentieth century lawyer who said of another lawyer, ‘He has one of the most enlightened minds of the eighteenth century’ ? 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.
Frank, “The Cult of the Robe,” 28 Sat. Rev. of Lit, October 13, 1945, pp. 12, 80. (This was published in expanded form under the same title in Courts 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 naïve, considering 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.J. 564–67 (1946). Frank’s term of opprobrium is “robe-ism,” which covers a multitude of sins in the judges.
Frank, “Self-Guardianship and Democracy,” editorial in 16 American 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.
For a discussion of these problems, see Charles E. Wyzanski, Jr., “A Trial Judge’s Freedom and Responsibility,” 65 Hart,. L. Rev. 1281 (1952) and Felix Frankfurter, “Some Observations on the Nature of the Judicial Process of Supreme Court Litigation,” 98 Proc. Am. Philos. Soc’y 233 (Aug. 16, 1954), repr. 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).
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© 1959 Martinus Nijhoff, The Hague, Netherlands
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Paul, J. (1959). The Role of the Judge in the Judicial Process. In: The Legal Realism of Jerome N. Frank. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9493-8_5
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