JURISPRUDENCE – I

PROJECT ON

AMERICAN REALISM
Submitted to:

Dr. (Mohd.) Amir khan

(Assistant Professor)

Submitted by:

Kamaljeet Meena

Section C

Roll No- 68

Semester- V, B.A.L.LB. (Hons.)

Hidayatullah National Law University

Naya Raipur, Chhattisgarh

 American Realism

Acknowledgements

Thanks to the Almighty who gave me the strength to accomplish the project with sheer hard
work and honesty. This research venture has been made possible due to the generous co-
operation of various persons. To list them all is not practicable, even to repay them in words is
beyond the domain of my lexicon.
This project wouldn’t have been possible without the help of my teacher, Dr. (Mohd) Amir Khan
Faculty at HNLU, who had always been there at my side whenever I needed some help regarding
any information. He has been my mentor in the truest sense of the term. The administration has
also been kind enough to let me use their facilities for research work. I thank them for this.

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 American Realism

Introduction

Jerome Frank was an American legal philosopher who played a leading role in the American
Realism Movement. Legal realism is a school of legal philosophy that is generally associated
with the culmination of the early-twentieth century attack on the orthodox claims of late-
nineteenth-century classical legal thought in the United States of America. Legal realism was
introduced to American Jurisprudence by Oliver Wendell Holmes who has been described as
mental father of realist movement by Dr. Freidmann.

This project is an attempt to put forward the contribution of Jerome Frank in the American
Realism Movement. He had been a judge in United Courts of Appeal for Second Circuit and was
considered to be a highly competent judge in in the fields of procedure, finance, and criminal
law. He wrote as many as six books during his lifetime, one of which published posthumously.
His most extensive personal and judicial papers are archived in Yale University. He held various
government and administrative posts during his lifetime and it becomes important to throw light
into the philosophy of such a great scholar.

He became well known among legal fraternity for the theory of basic legal myth in his work
“Law and the Modern Mind”. He took forward the American realism movement after Holmes
and Gray.

The organisation of judicial system in United States was one of the reasons why jurists put too
much emphasis on the judges. The Supreme Court being the final authority in interpreting the
law, the existence of separate state jurisdictions caused a multiplicity of laws and decisions.
These attracted the conscience of jurists to concentrate more on courts to know the actual
working of law and to study those factors which determine and influence it.

Legal realism was primarily a reaction to the legal formalism of the late 19th century and early
20th century, and was the dominant approach for much of the early 20th century. It succeeded in
its negative aspiration of casting doubt upon formalist assumptions that judges always did what
they said so that it is often said that 'we are all realists now.’

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Research Methodology

 The objectives of the project are:

1. To understand the role of Jerome Frank in the American Realism movement.
2. To put forth the theories, beliefs and perspectives of Jerome Frank.
 Data collected

1. This project work is descriptive & evaluative in approach. Books, scholarly

articles & other references as guided by faculty of Jurisprudence - I were
primarily helpful for the completion of this project.

 Mode of citation: 19th bluebook citation style

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 American Realism

CONTENTS

Chapter Page no.

Introduction………………………….…………………………..…….03

Research Methodology………………………………………………..04

1. About Jerome Frank…………………………………….……..06

2. About American Realism...…………………………………….08
3. The Basic Legal Myth……………………………………….….09
4. The Judge’s hunch……………………………………….……..11
5. The Upper court myth and Fact finding in trial court…….…12
6. The Jury system……………………………………………..….14
7. Conclusion………………………………………………………16
8. Bibliography……………………………………………...……..17

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Chapter 1

About Jerome Frank

Jerome Frank was an American legal philosopher who played a leading role in the American
Realism Movement. He was born in New York city in the year 1889. His parents were
descendants of German Jewish who had come to the United States in the first half of 18th century.

Frank’s father relocated his family to Chicago where he attended Hyde Park High School. He
graduated in the year 1909 from the University of Chicago studying political science and
literature. On father’s insistence, he joined University of Chicago Law School and completed his
legal education in 1912 when he got the highest average any student had achieved till that time.

He did private practice in Chicago from 1912-1929 when he worked with Newman, Levinson,
Becker and Cleveland where he was made name partner in the year 1919. The firm specialized in
corporate reorganizations and in corporate financial problems. During World War I Frank also
served as an assistant to Joseph P. Cotton who was running the Chicago stockyards for the Food
Administration. He did some teaching at the University of Chicago Law School during the war,
substituting for professors who were in government service.

During the 1920s Frank became deeply interested in Freudian psychology and, on an extended
business trip to New York in 1928, underwent six months of intensive psychoanalysis. The
analysis aided Frank in overcoming his longstanding dissatisfaction with his career as a lawyer
and had a direct and important influence on his first book, Law and the Modern Mind, published
in 1930. The importance of the book shall be dealt later.

In 1929 Frank moved with his family to New York and in November of that year he joined the
large Wall Street firm of Chadbourne, Stanchfield and Levy and in 1932 he was appointed a
research associate in Yale Law School on the Sterling Foundation. Frank served as a member of
the committee headed by Senator Wagner that drafted a version of the National Industrial
Recovery Act. Frank was offered the job of general counsel to the Agricultural Adjustment
Administration in 1933 which he accepted. Frank was also responsible for the creation of the
Federal Surplus Relief Corporation in 1933 where he served as the general counsel till 1935.

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 American Realism

Soon after leaving AAA in 1935, Frank was appointed special counsel for the Reconstruction
Finance Corporation in railroad reorganization matters. In December 1935 Frank was appointed
consulting legal counsel on a per diem basis for the Power Division of the Public Works
Administration. In 1936 Frank returned to private practice in New York with the firm of
Greenbaum, Wolff and Ernst. During the next two years, Frank wrote Save America First, in
which he advocated economic and political isolation for the United States.

On the recommendation of William O. Douglas, Frank was made a member of the Securities and
Exchange Commission in December 1937. He became chairman of the SEC in May 1939 when
Douglas became a Supreme Court justice. His book, If Men Were Angels, published in 1942,
deals with Frank's views on the role of governmental regulatory agencies and was a direct result
of his work on the SEC.

Frank was appointed a judge of the United States Court of Appeals for the Second Circuit in
1941. He served on the court until his death, distinguishing himself as an outstanding judge in
the fields of procedure, finance, criminal law and civil liberties. In 1945 Frank published Fate
and Freedom, a treatise on philosophy and history. In 1946 and again in 1954, he was appointed
a visiting lecturer at the New School for Social Research. In 1946 he also received an
appointment as a visiting lecturer at Yale Law School, a position he held until his death. In 1949
he published a criticism of the trial court system, Courts on Trial, which grew out of a series of
lectures given at Princeton University the previous year. His last book, Not Guilty, written with
his daughter, Barbara, and dealing with men convicted of crimes they did not commit, was
published after his death in 1957.

In addition to his books, Frank wrote many articles for law reviews and magazines and delivered
a large number of speeches and lectures. He was a member of the Citizens' Committee for
Children in New York and a member of the Connecticut Academy of Arts and Sciences. He
served on the Advisory Board of The American Scholar from 1947 to 1952. Frank died of a heart
attack in New Haven on January 13, 1957. He was survived by his wife and daughter.1

1 Manuscript from Yale Finding Aid Database, Yale University Library (Online).
http://drs.library.yale.edu/HLTransformer/HLTransServlet?
stylename=yul.ead2002.xhtml.xsl&pid=mssa:ms.0222&clear-stylesheet-cache=yes

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 American Realism

Chapter 2

About American Realism

Legal realism is a school of legal philosophy that is generally associated with the culmination of
the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical
legal thought in the United States of America. Legal realism was introduced to American
Jurisprudence by Oliver Wendell Holmes who has been described as mental father of realist
movement by Dr. Freidmann.

It concentrates on a scientific observation of law in its making and working. This movement is a
combination of the analytical positivist and sociological approaches. The approach of the realist
is essentially empirical.

Realism denounces the legal rules and concepts and concentrates more on what courts actually
do in reaching the final decision of the case. In strict sense, realism define law as generalized
prediction of what courts will do. Their view is that the decisions of the judges are brought about
by ascertainable facts. Some of them are the personalities of individual judges, their social
environments, the economic conditions, etc. The importance of the personal element is not new,
but the contribution of realism lies in the fact that they have put too much emphasis on it.

Major jurists in American Realsim includes Gray, Justice Holmes, Jerome Frank and Carl N.
Llewellyn. Realism was not consolidated into a definite, coherent theoretical system; it can at
best be described as a movement or historical phenomenon rather than a school of thought.

American Legal Realism expressed a set of sometimes self-contradictory tendencies rather than a
clear body of tenets or a rigorous set of methodologies or propositions about legal theory

Unlike the sociological approach, realists are not much concerned about the ends of law, but their
main concern is on a scientific observation of law and its actual functioning.

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Chapter 3

The Basic Legal Myth

In his book, “Law and the Modern Mind (1930), Frank presented a notion that the certainty in
legal rules is a myth. By legal rules, he implied law. This is the myth that legal rules are certain
and that application to specific cases is essentially a mechanical task to be performed by the
courts. In his viewpoint, law is the “father-complex” which makes a man believe that everything
which law says is certain just like every saying of a father is to his son. The search for certainty
in law, he insisted, is really the quest on the part of adults for a father substitute. As the father is
the controlling force in childhood, so the law serves precisely the same function in adulthood. To
quote him:

“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.”2

He asserted the fact that to desire certainty in law, is to indulge in a childhood fantasy. He
conveyed this not only to the citizens but also to the judges and lawyers. Frank insisted that our
belief in the certainty of legal language is again, inspired by our child-like desire for a surrogate
father-figure in the form of an absolute, certain system of law.

With this analysis of childhood thinking and its relation to the law as a background, the author
defines the modern mind as “a mind free of childish emotional drags, a mature mind", a
pragmatic mind which does not adhere to a philosophy opposed to change. He called on the
lawyers to outgrow their childish longings for a “father-controlled world” and follow the
example of Justice Holmes, the “completely adult jurist”.3

2 “Law and the Modern Mind” 1930, Jerome Frank

3 Prashker, Louis (2014) "Law and the Modern Mind (Book Review)," St. John's Law Review:
Vol. 9: Iss. 1, Article 46

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 American Realism

Presenting this notion, it was not hard to guess that the theory met with criticisms. His theory
was labelled as vague. He did not offer a programme for cultivating this ‘modern mind’ when he
presented his notion that lawyers, and particularly judges, must become mature and more aware
of their own human limitations, prejudices, and doubts.

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Chapter 4

The Judge’s hunch

Frank believes that a judge's decisions are but a part of his total behavior, and that the process of
making decisions is in reality a composite of the psychological, environmental, and
socioeconomic factors that go into the development of the personality of the individual judge.
What appears to be a rational decision on the part of the judge is, according to Frank, really a
judicial "hunch" based upon the judge's reactions to the "facts" that are brought out in the trial.
The judge is a "witness of the witnesses," and as such, he is subject to the frailties of the human
mind in attempting to reconstruct the objective "facts" of a situation that took place in the past.

According to Frank, ‘Lawyers and judges must constantly act as psychologists or psychiatrists.'
To be aware of one's prejudices is tantamount to erasing them; and there is no better route to such
self-awareness than to undergo psychoanalysis. The judge who is periodically subjected to
analysis is likely not only to remedy his or her own personal biases but also to understand better
the behaviour of witnesses to any particular case. This psychoanalytical programme of self-
improvement may be further complemented by other corrective strategies. For example, judges
should attempt to correct physical impairments such as defective eyesight or hearing; and they
should put into writing their judicial hunches so as to require them to reflect on and perhaps
revise what may otherwise have been a hasty conclusion.

The notion here he presents heavily relies on psychology and it was certainly because Jerome
Frank had himself undergone six months of psychoanalysis in the year 1930 which probably
made him heavily rely on it and focusing on the psychological element a judge has.

However, one of the criticism followed that the suggestions were made by Frank without any
consideration of the potentially crippling effect that they would have had on the costs and
effectiveness of judicial machinery were they generally to have been implemented.

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Chapter 5

The Upper court myth and Fact finding in trial court

The year 1949 also saw the publication of Frank's other major jurisprudential text, a series of
essays written over a period of years and collected together under the title of Courts on Trial.
This brought with it the concept of “the upper court myth” and an insight into the fact finding in
a case by trial courts.

“The myth that upper courts are at the heart of court-house government. This myth induces the
false belief that it is of no importance whether or not trial judges are well-trained for their job,
fair-minded, conscientious in listening to testimony, and honest. In considerable part, this belief
arises from the fallacious notion that the legal rules, supervised by the upper courts, control
decisions.”4

The trial courts perform what is for Frank the most significant part of the judicial process, the
finding of facts. Since most decisions are not appealed, fact-finding at first instance determines
the outcome of a majority of cases; and even when a case is appealed the upper court will tend to
accept as final the trial court's finding of facts. Whereas the trial court hears witnesses
testimonies, and is able to scrutinize the demeanour of witnesses presenting their testimonies, the
upper court has before it only a transcript of the trial court's findings; accordingly, the upper
court will usually refuse to review the trial court's findings of fact. Moreover, the difficulty of
determining whether the guess of a judge as to the facts does correspond to the actual facts is
sufficiently difficult where the testimony appears in the form of a printed record. The courts have
often noted the printed page omits he witness’s tone of voice, the hesitation or readiness with
which he gives his answer and similar phenomena.

In his view, the trouble with most of the studies of judicial decisions is that they concentrate on
upper court opinions (and hence, the legal rules) and not the decisions of the trial courts, where
the vital fact-finding process takes place. This is what Frank calls the "upper-court myth," a
prevalent legal myth that beclouds the importance of trial court activity, which Frank thinks is
the heart of our legal system and of what he calls "court-house government."
4 Frank, Courts on Trial, op. cit., n. 15, p.

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He believes that more self-awareness and self-limitation on the part of judges (the
acknowledgment that judges are also human beings with fallible minds) would reduce the
subjective elements in the judicial process of finding what the facts are in a particular case. Since
it would be impossible to eliminate all of the subjective factors in the picture, the judicial process
will always remain less than perfect. One of Jerome Frank's suggested reforms in this regard is
the more general use of special findings of fact by judges at the trial court level.

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Chapter 6

The Jury system

Frank regards the jury system as outmoded in function and grossly inefficient as an instrument
for finding the facts of a case. As in the case of judges, Frank believes that the jury is a poor fact-
finder because of its inherent human limitations as "witnesses of the witnesses." Although the
judge has special legal training, the jury is for the most part incapable of recognizing perjured
evidence, poor memories, and the like.

As a collection of twelve legally uneducated, fallible lay-persons, the jury, he insisted, is an

incompetent fact-finding body. Not only, however, does the jury determine facts, it also
determines rules, since under the general verdict system it effectively decides a case without
explaining how it reached its conclusion. By operating in this way, the jury serves to make the
law extremely arbitrary and uncertain.

His main work on the subject, Not Guilty, written with his daughter and published posthumously,
is basically a chronicle of the cases of thirty-six men who, owing primarily to the errors of juries,
were found guilty, only later discovered to have been innocent. For Frank, the use of the jury
system weakens the doctrine that democracy is a 'government of laws and not men', for the
principle of equal treatment of individuals according to law is placed at the whim of personal
bias and discretionary action. Furthermore, the use of the jury perpetuates the use of the
adversary procedure, or 'fight theory' as Frank called it. The adversary method is based on the
assumption that truth can be arrived at by each lawyer bringing to the notice of the court
evidence favourable to his or her case. Such a method is inimical to the cause of justice.

“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 a result of
hundreds of years of professional disputation in the courts“

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Jerome Frank suggested a complete overhauling of the jury system, including special courses of
study for prospective jurors. But it is his belief that the jury should be dispensed with in most
trials. The jury system has outlived its original purpose of protecting the individual against
arbitrary authority, and has itself become an arbitrary instrument of ignorant men who are not
only miserable fact-finders, but also usurpers of the rule-making function of the judge.

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Chapter 7

Conclusion

After John Chipman Gray (1839-1915) and Oliver Wendell Holmes (1841-1935) who were
considered as mental fathers of the realist movement by Dr. Friedmann, Jerome Frank carried
forward the American Realism movement infusing fresh perspective by presenting his theories
on legal certainty and the crucial aspects of fact-finding, psychology of judges, jury system and
the role of upper courts. He made us realise that judges are not super-human, but subject to
normal human frailties.

Professor Edmond N. Cahn (of the New York University Law School, a noted legal philosopher)
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 bequeathed to us.”

Though more pragmatically-oriented and less theoretical than modern critical legal scholars,
legal realists such as Frank never saw the implementation of the large scale reforms of the courts
and the law schools which they desired. As one commentator has explained, referring
specifically to the realists' attack on the courts: 'However useful it is to recognize that the law
emerges from what judges do, it does not serve well as a source of premises for what judges
should do.'

Although he made important points, his theories were criticized for a bit of an extreme
perspective as he placed too much emphasis on the role of judges. It should also be noted that the
science of law in discourse is a purely formal science like mathematics and its subject matter is
completely propositional. It deals only with certainties and its only instrumentality is formal
logic.

By some critics, Frank's jurisprudence was branded as the jurisprudence of despair. As a result of
his first book, the provocative Law and the Modern Mind, which he published in 1930 at the age

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of forty-one, he came to be regarded by a considerable number of jurists as one of the founders

of the Realist School of Jurisprudence.

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Bibliography

Books

 Jurisprudence and Legal Theory, V.D. Mahajan, Fifth Edition, Eastern Book Company
 Law and the Modern Mind, 1930, Jerome Frank
 Courts on Trial, 1949, Jerome Frank

Articles from Journals

 Prashker, Louis (2014) "Law and the Modern Mind (Book Review)," St. John's Law
Review: Vol. 9: Iss. 1, Article 46. Available at:
http://scholarship.law.stjohns.edu/lawreview/vol9/iss1/46
 Julius Paul, Jerome Frank's Contributions to the American Legal Realism, 11 Vand. L.
Rev. 753, 782. Available at www.heinonline.com
 Neil Duxbury, Jerome Frank and the Legacy of Legal Realism, Journal of Law and
Society, Vol. 18, No. 2 (Summer, 1991), pp. 175-205. Available at
http://www.jstor.org/stable/1410136
 Brendan F. Brown (2016) "Jerome Frank and the Natural Law," The Catholic Lawyer:
Vol. 5: No. 2, Article 7. Available at: http://scholarship.law.stjohns.edu/tcl/vol5/iss2/7

Online Manuscript

 Manuscript from Yale Finding Aid Database, Yale University Library (Online).
http://drs.library.yale.edu/HLTransformer/HLTransServlet?
stylename=yul.ead2002.xhtml.xsl&pid=mssa:ms.0222&clear-stylesheet-cache=yes

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