Jerome Frank | |
|---|---|
 Frank in 1939 | |
| Judge of theUnited States Court of Appeals for the Second Circuit | |
| In office March 27, 1941 – January 13, 1957 | |
| Appointed by | Franklin D. Roosevelt |
| Preceded by | Robert P. Patterson |
| Succeeded by | Leonard P. Moore |
| Chairman of the Securities and Exchange Commission | |
| In office May 18, 1939 – April 9, 1941 | |
| Preceded by | William O. Douglas |
| Succeeded by | Edward C. Eicher |
| Personal details | |
| Born | Jerome New Frank (1889-09-10)September 10, 1889 New York City,New York, U.S. |
| Died | January 13, 1957(1957-01-13) (aged 67) New Haven,Connecticut, U.S. |
| Education | University of Chicago (PhB,JD) |
Jerome New Frank (September 10, 1889 – January 13, 1957) was an American legal philosopher and author who played a leading role in thelegal realism movement.[1] He was chairman of theU.S. Securities and Exchange Commission, and aUnited States circuit judge of theUnited States Court of Appeals for the Second Circuit.
Born inNew York City,New York, Frank's parents were Herman Frank and Clara New Frank, descendants of mid-19th-centuryGerman Jewish immigrants.[2] Frank's father, also an attorney, relocated the family toChicago,Illinois, in 1896, where Frank would attendHyde Park High School,[2] before receiving hisBachelor of Philosophy degree from theUniversity of Chicago in 1909.[2] Frank obtained hisJuris Doctor from theUniversity of Chicago Law School in 1912,[3] where he had the highest grades in the school's history,[2][4] despite leaving the program for a year to work as secretary to reformist Chicago aldermanCharles Edward Merriam.[2] Frank worked as alawyer in private practice in Chicago from 1912 to 1930, specializing incorporate reorganizations, and becoming a partner in the firm in 1919.[2]
Frank was alegal skeptic. He characterized cases through an equation: R x F = D, where R stands for the applicable legal rule; F signifies the facts of the case; and D signifies the decision.[5]: 540 Frank distinguished two classes of American legal realists: rule skeptics and fact skeptics.[6]: 645–46 Rule skeptics—who Frank dismissively referred to as "magic addicts"—were skeptical that the legal rules articulated in decisions could adequately explain case outcomes,[5]: 540 but, by employing various social sciences, they believed they could discover "real rules" thatcould predict case outcomes.[7]: 1141 [5]: 540 Frank, on the other hand, considered himself a "fact skeptic":[8]: 543 While he, too, traced uncertainty in the law to indeterminate legal rules, he believed that legal uncertainty was inevitable given the impossibility of predicting judicial fact finding or fully comprehending the myriad psychological influences on a judge that might affect a decision.[7]: 1141 Moreover, Frank argued that this indefeasible uncertainty was not to be bemoaned; rather, he commented, "Much of the uncertainty of law is not an unfortunate accident: it is of immense social value."[9]: 6–7 [7]: 1142
In 1930, after having undergone six months ofpsychoanalysis, Frank publishedLaw and the Modern Mind, which argued against the "basic legal myth" that judges never make law but simply deduce legal conclusions from premises that are clear, certain, and substantially unchanging. Drawing on psychologists such asSigmund Freud andJean Piaget, Frank proposed that judicial decisions were motivated primarily by the influence of psychological factors on the individual judge.[10] Like his judicial hero, JusticeOliver Wendell Holmes Jr., Frank urged judges and legal scholars to acknowledge openly the gaps and uncertainties in the law, and to think of law pragmatically as a tool for human betterment.[11]
The book "dropped like a bombshell on the legal and academic world",[10][12] quickly becoming "a jurisprudential bestseller" which "was widely noticed as well as criticized".[13] In 1930, Frank moved to New York City, where he practiced until 1933, also working as a research associate atYale Law School in 1932, where he collaborated withKarl Llewellyn ofColumbia Law School, and feuded with legal idealistRoscoe Pound, dean of theHarvard Law School. In 1933, Frank published a landmark article proposing hands-on ("clinical"), not just book-based, education for law students.[14]
In addition to the philosophical disagreements arising from Frank's realism and Pound's idealism, Pound accused Frank of misattributing quotes to him inLaw and the Modern Mind, writing to Llewellyn:
I am troubled about Jerome Frank. When a man puts in quotation marks and attributes to a writer things which he not only never put in print any where, but goes contrary to what he has set in print repeatedly, it seems to me to go beyond the limits of permissible carelessness and to be incompatible, not merely with scholarship but with the ordinary fair play of controversy.[15]
Llewellyn defended Frank, but Pound would not relent. This led Frank to produce a lengthy memorandum showing where each quote attributed to Pound by Frank could be found in Pound's writing, and offering to pay Pound to hire someone to verify the citations.[16] Pound would continue to attack Frank's legal philosophy throughout his life, although Frank later moderated his views on legal realism.[17]
Frank's judicial service (1941–1957) did not stem his scholarly output. In 1942, he publishedIf Men Were Angels, a defense of the ambitious New Deal programs, and governmental regulation in general, expressing views that he developed while serving in the SEC.[2] In 1945, he publishedFate and Freedom, which attacked the theoretical underpinnings ofMarxism,[10] denying that societies followed any strict progression and insisting that people were free to mold the development of their own society. Beginning in 1946, Frank also began teaching a regular course on legal fact-finding atYale Law School which "emphasized the parts that human fallibility and partisanship play in the trial court processes".[2] In 1949, he published his most significant work afterLaw and the Modern Mind, this beingCourts on Trial, which stressed the uncertainties and fallibility of the judicial process.[18] In 1951 he moved from New York City to New Haven, Connecticut, preferring to live closer to Yale.[10] His last book,Not Guilty was written with his daughter, and published following his death.[19] The book concerned specific cases of people who had been wrongfully convicted of crimes.[10]
During theNew Deal administration ofPresidentFranklin D. Roosevelt, Frank sought the assistance ofFelix Frankfurter to secure a position with the administration.[2] Frank was initially offered the position of solicitor of theUnited States Department of Agriculture, but this appointment was blocked byPostmaster GeneralJames A. Farley, who favored another candidate for the job.[2] Frank was then appointed asgeneral counsel of theAgricultural Adjustment Administration in 1933, and soon became embroiled in an internal struggle with the agency's head,George Peek, who had tried to exercise complete control over the agency.[2] Peek resigned in December 1933, and Frank continued to serve until February 1935, when he was purged along with young leftist lawyers in his office. (Some of these lawyers were members of theWare Group spy ring run byWhittaker Chambers, namely:Alger Hiss,Lee Pressman,Nathan Witt, andJohn Abt). Roosevelt approved the purge,[20] but made Frank a special counsel to the Reconstruction Finance Association in 1935.[2]
Frank returned to private practice in New York from 1936 to 1938, with the firm of Greenbaum, Wolff and Ernst. In 1937,William O. Douglas recommended that Roosevelt appoint Frank to be a commissioner of theSecurities and Exchange Commission, which Douglas then chaired.[2] Roosevelt agreed, and Frank served as an SEC commissioner from December 1937 until 1941, and was elevated to Chairman from 1939 to 1941, when Douglas was appointed to theUnited States Supreme Court.[2] While serving in the SEC, Frank also served on theTemporary National Economic Committee.[2]
In 1938, Frank also published a book titledSave America First, which had been written during his return to private practice and advocating against American involvement in the stirring conflict in Europe. However, Frank recanted those views after theattack on Pearl Harbor, and Roosevelt forgave Frank's isolationism.[10]
Frank was nominated by PresidentFranklin D. Roosevelt on February 13, 1941, to a seat on theUnited States Court of Appeals for the Second Circuit vacated by JudgeRobert P. Patterson.[21] He was confirmed by theUnited States Senate on March 20, 1941, and received his commission on March 27, 1941.[22] His service terminated on January 13, 1957, due to his death.[23]
Frank was considered a highly competent judge, often taking what was perceived as the moreliberal position on civil liberties issues.[10] In addition to his reputation for expertise on civil liberties matters, he was also considered to be "an outstanding judge in the fields ofprocedure,finance, [and]criminal law".[2] For a time, he was sharply and vocally at odds with a colleague on the bench,Charles Edward Clark, "over a whole range ofcommon law precepts".[17] In a tribute when Frank died, Clark referred to these disagreements as "glorious battles" and called Frank "a gladiator of unusual power and adroitness," who "never seemed to harbor permanent spite of any form whatsoever."[24]: 818
Frank's scholarly tendency bled over into his judicial opinions, some of which were notoriously lengthy. One anecdote relayed about this aspect of Frank's work tells of alaw clerk who had objected to the length of one of Frank's opinions. According to the story:
He spent all of a week and finally cut it down from sixty-five pages to one-half page. He left both on Judge Frank's desk without comment. The following morning Judge Frank rushed into his clerk's office and shouted, 'Bully for you,' displaying the clerk's work, 'we'll add it to the end'.[25]
As a judge, Frank wrote the opinion in February 1952 affirming the convictions ofJulius and Ethel Rosenberg, who had been convicted of conspiracy to commit espionage.[4] In reviewing the case as part of a three-judge panel, Frank rejected each of the Rosenbergs' arguments on appeal. Frank denied that thedeath penalty imposed on the Rosenbergs was cruel and unusual punishment, but privately he had advised trial judgeIrving Kaufman not to sentence the Rosenbergs to death.[4] In his opinion, he also suggested that the Supreme Court might want to revisit the questions about the death penalty for crimes similar to treason.[4]
In a related case, however, Frank dissented from his two colleagues by voting to grant a new trial to an accused third conspirator,Morton Sobell.[4] The jury, according to Frank, should have been permitted to decide whether Sobell had joined the other conspirators in their plan to send atomic information from Los Alamos to the Soviets, or had merely engaged in a separate, less significant conspiracy with Julius Rosenberg to transmit non-atomic information.[4]
In the 1956 caseUnited States v.Roth,[26] Frank wrote a concurring opinion to the decision, which affirmed theobscenity conviction of a criminal defendant. In a lengthy appendix to his concurring opinion, Frank "drew on a host of historical, literary, and social science studies to point to the dangers and contradiction of all forms of government censorship of ideas and images".[10] The case was affirmed by the United States Supreme Court the following year, inRoth v. United States,[27] which noted Frank's approach. The concurrence has been asserted to be one of Frank's most important opinions, and one which set the stage for the direction the Supreme Court would take on such issues beginning in the 1960s.[10]
Frank marriedFlorence Kiper on July 18, 1914, and they had their only child, daughter Barbara Frank, on April 10, 1917. Florence Frank, herself a poet and playwright,[28] said of her husband: "Being married to Jerome is like being hitched to the tail of a comet".[10] Frank enjoyedword games,puns, andcharades.[10]
Frank died on January 13, 1957, of aheart attack inNew Haven,Connecticut.[10][29]
Frank's extensive personal and judicial papers are archived atYale University and are mostly open to researchers.[30] Yale Law School's clinical programs are housed in the Jerome N. Frank Legal Services Organization, named in recognition of Frank's early championing of adding a clinical component to legal education.[31]: 507–510, 511, 513
Frank had published many influential books, includingLaw and the Modern Mind (1930), which argues for ‘legal realism’ and emphasizes the psychological forces at work in legal matters. In 1965, his daughter Barbara Frank Kristein publishedA Man's Reach: The Selected Writings of Judge Jerome Frank, with a foreword byWilliam O. Douglas and an introduction byEdmond Cahn ofNew York University School of Law. At least one legal commentator has written that "[f]ew jurisprudential writers have aroused such prolonged public controversy as Jerome Frank".[32]
Media related toJerome Frank at Wikimedia Commons| Government offices | ||
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| Preceded by | Securities and Exchange Commission Chair 1939–1941 | Succeeded by |
| Legal offices | ||
| Preceded by | Judge of theUnited States Court of Appeals for the Second Circuit 1941–1957 | Succeeded by |
Chairmen of theUnited States Securities and Exchange Commission | ||
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