Jerome N. Frank (1889-1957) was an American lawyer, public official, judge, law teacher, and writer on law and social philosophy. As an active participant in public affairs, first as a middle-ranking figure in the New Deal and later as a United States circuit court judge, Frank was respected as an effective, if sometimes turbulent, influence for change. He had opponents but few enemies. He was a generous person, kind, unpretentious, enthusiastic in behalf of his friends, and a witty companion as well. His passion was writing, and even in the most demanding periods of his service in Washington, he produced books and articles on a wide variety of subjects. They remain the chief source of his influence.
Frank was born in New York but grew up in Chicago; he attended the University of Chicago, taking his law degree in 1912. The university left in Frank’s mind strong traces of attitudes that were typical of the institution’s early outlook: a sense of identification with the liberal and progressive theme in the spirit of the nation; a wide-ranging enthusiasm for ideas, particularly new ideas; and a preference for innovations, especially if they could be called “reforms.” After leaving the university, Frank practiced law for 17 years in Chicago, where he was a conspicuous and successful counselor and attorney, mainly in the field of commercial and financial transactions. He and his wife, a well-known poet, also belonged to the literary world of Chicago.
Intellectual interest and a sense of immediate need led Frank to undergo psychoanalysis, an event in his personal history that had a far-reaching impact on his thinking. In 1930 Frank published his most famous book, Law and the Modern Mind, which views the law in a Freudian perspective and interprets the methods and processes of law as social magic. Thus, judges are shown as father figures of mystical authority, dressed in robes and required to sit on high benches so that they evoke irrational deference. This kind of magic, according to Frank, helps maintain social order. The book came at a moment when Freudian insights were just beginning to touch the literature of political science, anthropology, literary criticism, sociology, and law; and it created a storm. Its sparkle and force made it a conspicuous factor in the acceptance of psychoanalysis as an important element in American views of man as a social being.
Frank had moved to New York in 1929; there he continued to practice law and joined a number of intellectual circles. He lectured at the New School for Social Research and in 1930 began an intermittent association with the Yale Law School, which lasted until his death.
The Yale Law School of the early 1930s was a lively place, well suited to Frank’s personality and interests. The staff included William O. Douglas, Walton H. Hamilton, Thurman Arnold, Abe Fortas, Underbill Moore, and a number of psychologists, economists, and statisticians, as well as more orthodox law professors. The school imbued Frank with the sense that the world was about to be remade, if not reborn. It was one of the centers of American “legal realism,” a controversial philosophical movement, which was concerned with directing attention from the “law in the books,” the doctrinal law of the appellate courts, to “the law in action,” the patterns of usage and practice that actually prevail in daily life, in the lower courts, and in business. Frank fought zestfully for the latter view of the law, a view which was strongly resisted.
After this stimulating experience he joined several members of the Yale faculty in the adventurous first wave of President Roosevelt’s New Deal and was appointed general counsel of the Agricultural Adjustment Administration. This radical experiment in direct controls was headed by George Peek, a rural conservative and, like most of his agrarian staff, suspicious of urban, volatile, intellectual types like Frank himself and the extraordinary group he assembled, a group which included Arnold and Fortas from Yale, Adlai Stevenson, and Alger Hiss, among many others. The conflict between this group, led by Frank, and the older breed of agricultural experts lasted nearly two years; it ended in one of the spectacular explosions of the New Deal, with Frank and a considerable number of his allies in the Department of Agriculture being dismissed. Frank was soon reappointed, first to the staff of the Reconstruction Finance Commission and then as a member—from 1937 to 1939—and as the chairman—from 1939 to 1941—of the Securities and Exchange Commission, where he played an active part in the development of policy, particularly under the Public Utility Holding Company Act of 1935.
During this period he published Save America First (1938), a far-ranging comment on the economic element in social experience, which included an argument against American participation in the European war. It was written in the spirit of senators Borah and Norris and the older tradition of agrarian Populism; before June 1940 Frank took part as an isolationist in the national debate over America’s interest in the war.
In 1941 he was appointed judge of the United States Court of Appeals for the Second Circuit, sitting in New York; he later moved to New Haven when he began to teach regularly at the Yale Law School. Frank found stimulus in the company of his judicial colleagues, especially judges Learned Hand, Augustus Hand, and Charles E. Clark, as well as at the law school, where he maintained an active office and saw students and faculty members regularly. His opinions were colorful and often unorthodox in form, reflecting the range of his reading and the mannerisms of a style that had become unusually free and personal in tone. He did important judicial work in several fields of law, including procedure, finance, criminal law, and civil liberties. He was widely quoted on obscenity, immigration, the rights of the accused in criminal trials, and other subjects; and his views were much discussed in the law reviews.
The books and articles of the final period in Frank’s life embody the unresolved contradictions of his view of law and of the social process. Quick, agile, and known for his brilliant aperyus, Frank did not have the discipline of a systematic scholar and permitted himself the luxury of inconsistent positions. In his teaching at Yale and in his writing, especially in Courts on Trial (1949), he stressed the importance, as well as the uncontrollable irrationality, of fact-finding in the processes of law, arguing that fact-finding constitutes a step in the trial of cases that dominates the apparently superior legal rules laid down by appellate judges. He deplored and ridiculed man’s yearning for strict and predictable legal rules, but in the end his proposals for law reform aimed to bring trials under the more effective control of those rules and to make the rules clearer, more uniform, and more predictable. He argued that legal education should be brought closer to trial practice and also that legal practice should correspond more closely to the law taught in law schools. For many years he saw “natural law” as a dangerously vague and misleading slogan, but he never ceased to contend that the administration of law should give a larger place to ideas of ethics and individual justice.
In his work Frank revealed the strengths and shortcomings of the legal and social philosophy of which he was a militant partisan. He spoke persuasively for sensible reform, for simplicity, and for humane values in the law and in the social order generally. By preaching the need to relate theories to facts he helped men to build the law anew on the foundation of social need. If he never realized the equal need of relating facts to theories, he shared his faith in the autonomy of fact with many pragmatists.
EUGENE V. Rosxow
(1930) 1949 Law and the Modern Mind. New York: Coward.
1938 Save America First: How to Make Our Democracy Work. New York: Harper.
1942 If Men Were Angels: Some Aspects of Government in a Democracy. New York: Harper.
(1945) 1953 Fate and Freedom: A Philosophy for Free Americans. Rev. ed. Boston: Beacon.
1949 Courts on Trial: Myth and Reality in American Justice. Princeton Univ. Press. ⇒ A paperback edition was published in 1963 by Atheneum.
1957 FRANK, JEROME; and FRANK, BARBARA Not Guilty. Garden City, N.Y.: Doubleday.
1965 A Man’s Reach: The Philosophy of Judge Jerome Frank. Edited by Barbara Frank Kristein. New York: Macmillan. ⇒ A selection of Frank’s writings.
In Memoriam; Judge Jerome N. Frank: 1889-1957. 1957 University of Chicago Law Review 24:625-708. ⇒ See especially pages 706-708 for a bibliography of the non-judicial writings of Frank.
PAUL, JULIUS 1957 The Legal Realism of Jerome N. Frank: A Study of Fact-skepticism and the Judicial Process. The Hague: Nijhoff. ⇒ See especially pages 157-162 for a bibliography of the writings of Frank. SCHLESINGER, ARTHUR M. JR. 1959 The Age of Roosevelt. Volume 2: The Coming of the New Deal. Boston: Houghton Mifflin.