REALISM BY JEROME FRANK

Submitted By-
SAHARSH DUBEY
SM0117044

Faculty in Charge
Dr. Saheb Chowdhury

NATIONAL LAW UNIVERSITY, ASSAM

GUWAHATI

1ST NOVEMBER, 2018

 TABLE OF CONTENTS

1. INTRODUCTION
1.1. Research Questions
1.2. Literature Review
1.3. Scope and Objective
1.4. Research Methodology
2. OPINIONS ON LEGAL THEORY
3. OPINION ABOUT OTHER JURISPRUDENTIAL VIEW
4. CONTRIBUTION TO THE LEGAL THOUGHT
5. SUGGESTED REFORMS
6. EXPLANATION OF FRANK’S THEORY OF REALISM THROUGH A
FACTUAL SITUATION
 CONCLUSION
 BIBLIOGRAPHY
 CHAPTER – 1

INTRODUCTION

American legal realism is in itself quite a comprehensive and a debatable topics in jurisprudence.
The realist schools jurist share an ideology of rationalizing and modernizing the law both in the
matter of administration and bringing about coherent legislative changes that are in accordance
to the society. Jerome Frank a legal realist has contributed to the prevalent theories through his
theory of rule sceptics and fact sceptics living in an artificial two dimensional legal world of
rules and predications.

This in itself is a debatable arena where there is major debate lying upon the presence of the third
dimension. Where sceptics are of the idea that idealized view of law is that rules are known to
everybody in society beforehand as its pre legislated and whenever in case of a dispute there is a
preconceived notion that there is a judicial mechanism for ensuring justice and there are judicial
bodies to implement the decisions. The judges understand the issues brought before them,
implement them in a rational manner and decide them taking in consideration of the evidences
procured, precedents set, statutes provided and the legislations formed. The verdict then arises is
unbiased and binding upon the citizens.

But the aforementioned procedure is full of fallacy as the facts are subject to certain
interpretations and remain unproven beyond doubt and still the minimum requirement of law to
give certain stand of proof is unsatisfactorily left unfulfilled. While in certain criminal cases the
offense of the other party needs to be proven beyond doubts.

Frank a realist was of the idea that a judge’s ability to interpret the law plays a massive role in
shaping up the judicial mechanism and is par excellence. He reiterated that law that was
formulated by legislature is prejudiced an incomprehensible in the context of all the citizens. But
it is the temperament and the interpretation of law by the judges that shapes up the legal
mechanism in a defined way. Thus a mere technical analysis is not important to understand how
the laws work.

The project encompasses all the dimensions of the legal theory and opinion about other
jurisprudential views as given by Frank and also inform about the suggested reform as proposed
by Frank in his works. Thus, the project deals comprehensively about the views of Frank and
provides a vivid picture of it.

RESEARCH QUESTIONS:

1) What are the opinions of Jerome Frank on legal theories?

2) What are the views of Jerome Frank about the opinion of other jurists?

3) What are the contributions of Jerome Frank in the legal thought?

4) What could be the suggested reforms of the aforementioned situations according to Jerome
Frank?

LITERATURE REVIEW

 Sam A. Beatty, On Legal Realism-Some Basic Ideas of Jerome Frank, 11 Ala. L.

Rev. 239 (1959): This article provides an in depth analysis of the works of Jerome Frank,
an American Realist. It talks about the idea of Frank on topic of law, its definitions and
highlights the various core concepts of the law as advocated by Frank himself. It also
deals with the suggested reforms and other valuable inputs provided by Frank on the
subject of the law.
 Simon N. Vekdun-Jones, The Jurisprudence Of Jerome N. Frank, 3 Syd. L. Rev.
246 (1974): This article critically analyses the work of Frank, his theory about realism,
his views about the present system and the theory of actual and probable law. Thus, on
the whole summarizes each and every aspect of Frank’s work and then critically analyses
it to prevent a vivid picture of his works.

Scope and Objective:

The scope and objective of the project is to study about the in depth details of the work of
Jerome Frank on the theory of Realism. It mainly focusses on his idea, his suggested reforms, his
opinions about the views of other jurisprudents thinker and finally talks about the contribution of
Jerome Frank in the legal world.
Methodology:

1. Approach to research
In this project, the researcher has adopted Doctrinal type of research. Doctrinal research
is essentially a library-based study, which means that the materials needed by a researcher
may be available in libraries, archives and other databases. Help from various websites
were also taken.
2. Sources of data collection
Data has been collected from secondary sources like books, web sources etc. The
researchers collected no primary sources like survey data or field data.
3. System of Citation and Footnoting:

The researcher has followed the Blue Book 20 th edition method of citation and footing
throughout the project to maintain the uniformity.
 CHAPTER – 2

OPINIONS ON LEGAL THEORY

Frank was of the idea that the legal theory’s function was to develop certain political ideals
which would be synchronous with the idea of equity and justice and then to further ensure that
these ideas could be achieved in the society through the legal rules. His practical concern for
social reforms made him to be recognized as the legal realist, a term that he abhorred and
preferred the use of “legal actualism” or “constructive skepticism”.1 According to him, legal
realism was a term which suggested an insurgency or rebellion against the traditional thinking or
the idealistic thinking, but he believed it should be prohibited for the name, “experimentalists”.
Frank said that though there were differences in the group as well but all of the members had a
common characteristic i.e., skepticism or doubt about the traditional and conventional legal
theories, a reformative urge to improve the practices in the court-houses. He took it upon himself
to act as a reformer, in order to make the public more acquainted with the business of the court
houses. He classified the terms “rule skeptics” and “fact skeptics”. Rule skeptics were mostly
interested in obtaining legal certainty through the opinions and rules of the upper court, while the
fact skeptics were mostly concerned in examining the dangers of facts finding in the trial courts
either by the concerned judge or the jury members.

Even the term “law” bothered Frank. He gave two definitions of law, “actual law” which meant
the specific decisions given by the court in a particular situation and “probable law” which could
be described as the most probable outcome in a particular situation.2 When the critics raised
objections against his theory, he suggested the total abolition of the use of the term “law” and
advocated “the use of “specific decisions” of the courts, the process involved in arriving at this
specific decision and when the witnesses involved in the reaching to a particular decision were in
conflict, those were the outcomes of several influences….” 3 This definition was criticized by
many legal theorists as it defined law as being the outcome of certain wrong legal doctrines. But
to this view, Frank replied that it not at all bothered the clients or the lawyers that the particular
case was decided by a particular manner, once it was decided. Frank said that the legal theorists

1
Thurman Arnold, Judge Jerome Frank, 24 Uni. Chi. L. Rev. 633, 635 (1957).
2
Sam A. Beatty, On Legal Realism-Some Basic Ideas of Jerome Frank, 11 Ala. L. Rev. 239, 237 (1959).
3
Id.
want a finer definition of law as they want to arrive at an emotional satisfaction that the law is
certain and fixed but they don’t have any clients to advise that "have no clients to advise
S.. who will be disagreeable if it turns out that, while the 'law' is clear and predictable, their
rights-as determined by court decisions in lawsuits involving those rights-are not”4 Therefore, he
believed that it would be unfair to say that the law is fixed and predictable, without informing the
clients about the ambiguity of the outcomes of litigation. According to him, however certain or
predictable legal rules are, the legal rights are always speculative until they have been decided by
a court of law.

4
Simon N. Vekdun-Jones, The Jurisprudence Of Jerome N. Frank, 3 Syd. L. Rev. 246, 253 (1974).
 CHAPTER – 3
OPINION ABOUT OTHER JURISPRUDENTIAL VIEWS

Frank was very vocal in his criticisms about those legal philosophers, who believed law to be
definite and fixed. Among these were the proponents of the Natural Law, but Frank did not
criticize the natural law theorists as a whole or in general, rather he attacked the lack of
usefulness of such theories in deciding actual lawsuits. In his book “The Courts of Trial”, he
pointed out the fallacies of natural law in accurate details. He stated that natural law is quite
vague in its approach, since it mostly lays emphasis on law, nature and reason, all of which are
having different interpretations from the perspective of different jurists, these laws can fall on
either side in a case, depending upon the ambiguous interpretations of such laws. He argued that
Justice would be a better substitute of the term Natural Law, since the latter needs to be
translated in order to be grasped by the Non-Christians. He asked his followers to be cautious of
the natural law philosophy because according to him equal opportunity could not be maintained
if we adhere to the Natural law theory, which in turn has led to dehumanizing the religion of
science, a philosophy of laissez faire.5

The anthropological school assumed that the social norms, order and irregularities decided the
rights and duties of a person, and hence they were responsible for the court decisions. This view
led to a belief that if you have an idea about a particular community, then you could be pretty
much sure about the laws and customs of the area. But Frank scorned them mercilessly. He said,
that there is no specific, constant social norms in an ever-changing society like that of U.S.A.,
unless in a very specific issue of huge social importance. Further, he maintained that there are
several such communities where there are conflicting social norms and desires, where a
particular supporting one specific social order and the other preferring the second option. So, in
such cases the results remain unknown and hence the law would fail in such circumstances.
Further, he stated that the judge, himself, would interpret the several social norms in different
ways. Frank charged such conclusions of the judges on their failure to recognize the importance
of trials and court houses.

5
“Id. At 256.”
Justice Cardozo was acknowledged by Frank for asserting the uncertainty of law and warning
against a system of constant, definite law. But Frank believed that this view of Cardozo, was not
a natural one and he came to this view in a hesitating manner and still waits for the day when his
quest for perfect, would be satisfied. He said that though Cardozo’s efforts for realistic thinking
are praise worthy, his writing style is extremely bitter and said that it gave a glimpse of the
literature of 18th century. 6

Frank rejected the theory of Cohain, that value standards can be obtained in the opinions
published by the judges, saying that this theory undermines the value of witnesses who did not
disclose their value standards while giving their testimony and therefore it is impossible to
understand the value patterns of the court rooms. Hence, Cohen along with Hall, used the general
public manifestation of the social rules and ignored the private, undisclosed reactions of the
particular individuals like judges, witnesses, etc.

It’s not that Frank only criticized others view, but he appreciated the view of Holmes and Hand.
He acknowledged Holmes for being the first thinker to clearly state that the law is not like a book
of geometry and certain axioms cannot deal our legal system. On the other Hand, he respected
Hand to the point of veneration and said that he has love and understanding for all the creatures
and considered him to be the wisest judge among all.

6
Clark, Charles E., Jerorrte N. Frank, 66 Yale L.J. 817, 818 (1957).
 CHAPTER – 4

CONTRIBUTION TO THE LEGAL THOUGHT

Most of the writings of Frank were mainly concerned about the facts finding in a particular case.
He was actively interested in exploring the facts involved in a particular trial and then those with
the administration of law. Frank was not at all bothered even if he was finding needles in a
haystack, until and unless it brought the law nearer to the certainty of facts. One of the most
interesting idea of Frank was the concept of basic myth. He maintained that there is a myth
among the laymen which is backed the lawyers, that the law is certain, well defined and is fixed.
He laid emphasis that the interest of the common people were in a more safe hands in a dynamic
system, as compared to that of a static system. But still the concept of basic myth continued.
Frank explained: That human being just like a child, who overestimates the power of his father,
assumes him to be invincible, unfailing, depending and follows the rules declared by him,
considering it to be necessary for his security and survival. But when the child grows old, he
realizes incompetency of his father and looks for an alternate source which could end his chaos,
confusion and ambiguity. Here, comes the role of law, which is readily accepted by him as a new
source of father figure. But the law according to Frank is uncertain, vague as it deals with the
complex relationship of the human beings, which develops and changes with time. Hence, the
law should not be stagnant, it should be adaptable and hence, the modern day law should be free
of father like governance of the mind. And if the law has to survive in a modern civilization, it
should be pragmatic in nature and should come out of the fatherly figure administration and
should remove the belief of fatherly omnipotence. And once we change our approach, then only
one would realize that the man is not made for law but the law itself is made for us and by us. 7

So, starting with this approach, Frank started the mature analysis of law. Starting with the trial
itself, he stated that the trial is like a battle or a warfare which decided the rights and duties,
which could only be ascertained once a court gives a decision about them. The trials are
dependent on statements provided by the witnesses and studying about the perceptions or the
senses of the witness could be regarded as the study of the quintessential condition of law. The
decisions of the courts are not based on the actual facts but on the facts relied upon by the judges

7
Karl Llewellyn, Law and the Modern Mind: .A Symposium, 31 Colum. L. Rev. 82, 85 (1931).
or the jury members, because the witnesses while reporting about some facts are prone to some
unintentional errors due to the inefficiency in the powers of reflection and thought. Hence, the
facts of the case are nothing but the reliability of the jury members or the judge of a trial court on
a particular fact which were narrated to them by some other person. Further, Frank also believes
that the belief of the trial court is not reported and it determines the fate of a litigant, as mostly
the appellant court believes in the verdict of the trial court and gives value to it. Hence, Frank
maintains that the lawyers who are to advise their clients about a particular law, have to do it in a
very careful manner, where it could only be said law as a guess of what the judges will recognize
as a right decision based on their guess or assumptions of the facts.

Frank gave the examples of Chancellor Kent and Judge Hutcheson as the experts to emphasize
that the process of judging a particular trial, is itself an ambiguous, unclear, vague system and it
rests on the intuitions which are developed themselves by the social, economic, political and
other such factors. Judges are humans too, their different traits and characteristics affects the
process of fact finding and decision making. The social, economic and other such factors are not
even uniform in the same judge and that in other judges too. Therefore, the decisions are ought to
be affected in this regard. Franks says, the decisions of the judges are a combined unit, like a
whole as a gestalt, rather than being divided into small units. Therefore, the judge or the
members of the jury cannot explain his decision through a step wise process, rather he could only
by the use of the power of his limited ability of using the language could justify the conclusions.
He says that the judges have an intuitive perception which is pragmatic but it cannot be
expressed in a lingual manner and hence, he cannot describe his response to a conflicting
testimony. The decision of the judge is unique and no one else can envisage it because for that, a
person has to again live in the exact moment, from where the judge acquired his decision.

Further, he asserted that this status of uncertainty and non-uniformity is totally different from the
psychological science of behaviorism and he rebuked the disciples of such thought like Professor
Oliphant for giving attention to the non-vocal behavior which can be judged from the facts as
stated in the case records in order to predict the conclusion of facts involved in a particular
situation. 8Frank said that the psychologists who believe that responses given in the past could
help to predict the future decisions were mostly swayed by their experiments done on certain

8
“Id. At 86”.
animals like monkeys and since it is almost impossible to judge a human behavior, no one could
ascertain what a judge really decides and what he considers as facts when he reads a testimony,
but only what a witness had related to the judge. There are too many factors that affect the
decisions of the judge and his ability of fact finding, hence making an outrageous prediction
about it could only be termed as wild guess.

Frank therefore gave general criticism about the entire jury system who demanded a definite and
a certain legal system and said that how can they even imagine to find certainty in facts which
cannot be traced by the judge himself with complete accuracy?
 CHAPTER – 5

SUGGESTED REFORMS

Frank provided several suggestions to remove these defects. At the very outset, he advocated that
the role of judge should be recognized as an arbitrator, who exercises a wide range of discretion
while deciding a particular case depending upon the facts on which he relies. Further, he said that
the lawyers should also be trained before they assume their office of judgeship and must be
taught in order to recognize their fallacies, inclinations and other such deviating characteristics.
Further, the judges should learn to develop critical thinking keeping aside all the biases and they
must observe the rules of law, not as a final order but only as abbreviations which would provide
them the way to achieve satisfaction in a relative sense. If the judges are able to observe these
rules as abbreviations, they will soon realize that these rules are nothing but are only having a
fictional value, open to experimentation. Further, he also suggested that the courts should never
give decisions in a present case keeping an eye on the future cases because in such a case, the
attention of the judges would be diverted from the parties involved in the current case and the
court would then assume the office of a legislator, which it could not perform properly because
of the lack of administrative committees which are required to do so9.

According to Frank, jury members must not be used in non-criminal matters because they are not
at all efficient in fact finding and further, if the jury members are retained, they should clearly
mention the facts on which the judgement is made and a judge, as an aid to the jury must be
permitted to comment on the proofs present before them. Furthers, the jury members must be
given training while they are at school level and they must give a qualifying examination and
proper training must be provided in order to improve their ability to perceive the facts in more
accurate manner. So, on the whole, Frank said that even this approach of law could not help us to
attain certainty but would eventually help us to compensate for the loss of it.

CHAPTER – 6
9
“Supra n.3.”
 EXPLANATION OF FRANK’S THEORY OF REALISM THROUGH A
FACTUAL SITUATION

This chapter talks about what the real meaning of law is from the point of view of an average
man, when he approaches the lawyer to discuss about his case.

The case: The Jones family owned taxi company names as Blue and Gray Taxi Company and
were based in Kentucky. They entered into a contract with a railroad company which gave them
the access to exclusively do taxi business in the areas surrounding the railroad company. Another
taxi company named as Purple Taxi Corporation, started doing business in the area assigned to
the Blue and Gray Company, which angered the latter and their profits were hampered. The latter
company being affected by such developments went to a lawyer to seek legal advice. The lawyer
told them that he has examined the judgements of the various courts of Kentucky and they were
all of the opinion that this kind of agreement is not legally permissible in this state. But, he
advised them that in most of the cases, except those who took place in Kentucky and few other
places, this type of contract was perfectly valid. So, he gave them an advice to try the case in the
Federal court and for that he told them to establish a new company in the Tennessee and to
transfer all the funds of the old taxi company to the new one and then asked them to enter into a
new contract with the railroad company and dissolve the existing one. Then, since one of the
company would be of Kentucky and the other of Tennessee, they would be eligible to file a case
in the Federal Court. The taxi owners asked whether the plan would work. To this he replied, that
he is not sure and but the way the majority opinion thing works in the Federal Court, it is worth
giving a try.

The taxi owners did as the lawyer had told them and the case was filed in the Federal court. The
Court declared that the contract was a valid one and ordered the Purple Taxi Corporation to
remove their services from the area assigned to the former company. The latter company
displeased by the judgement, decided to appeal in the Federal Circuit Court of Appeals. The
former company’s lawyer was worried as he didn’t know what the outcome of the case would be.
But to his fortunes, the decision came in his favor. The Purple Taxi Company decided to appeal
in the Supreme Court. And here as well the Jones lawyer was not certain as to how the things
would turn out. Few different opinions of the members on the bench, the things could go on the
other side. The Supreme Court with a six-three majority ruled in the favor of the Jones and the
case was finally settled. 10

Now, what was the law according to Jones and owners of Purple Taxi Company? So, here
according to Frank, if you ask them before the new Tennessee Company was set up, Jones would
say that the law was that they could not be allowed to have a contract to exclusively extend their
services in a particular area. But after the suggestions of the lawyer was followed, it was even
more doubtful what the law was, as there would be few, who would suggest that there was a fair
chance that Jones would win but on other hand there would be equal number, who would suggest
that such an appeal would be dismissed as it was intentionally brought in the Federal Court, in
order to escape from the Jurisdiction of the Kentucky courts. So, until the final decision was
given by the Supreme Court, no one was sure what would be the outcome of the case. So, the
saying that there are fixed or certain laws that govern the rights of the people, before arriving to
the decisions of the Supreme Court is totally non acceptable. So, from the view of a common
man, law is the specific decision of the court based on a certain facts of a case, in which he is
involved. And until a decision is passed by the court, law is anything but a guess which a lawyer
predicts that this could be the outcome of a particular situation. And accordingly, if the Purple
Taxi Corporation didn’t have energy, fund or patience to appeal in the Supreme Court, the
decisions given by the Federal Court would have been the settled law for both the parties in such
a case.

CONCLUSION
Jerome Frank, Legal Realism (Oct. 28, 2018, 3:24 AM), http://faculty.tcu.edu/rgalvin/readings/Jerome%20Frank
10

%20-%20Legal%20Realism.doc.
After reading the view of Frank, the researcher would like to conclude that the fact skeptic
approach of the writer, in the period where most of the legal theorists were mainly concerned
about the natural law and were inclined towards giving law, a certain and definite view, was
really a courageous effort, in order to bring something different and unique from the other legal
theorists. But we could also say that hi approach was too extreme and it gave a lot of importance
to the role of judge. Further, his system was applicable only to the criminal matters and he didn’t
give any explanation for civil system. This approach could also let one to lose his/her faith in the
judicial system as it mainly emphasizes that decision specifically depends on what a particular
judge thinks on a particular day and there are no definite rules as such to decide the case.

BIBLIOGRAPHY
 Thurman Arnold, Judge Jerome Frank, 24 Uni. Chi. L. Rev. 633, 635 (1957).
 Sam A. Beatty, On Legal Realism-Some Basic Ideas of Jerome Frank, 11 Ala. L. Rev.
239, 237 (1959).
 Simon N. Vekdun-Jones, The Jurisprudence Of Jerome N. Frank, 3 Syd. L. Rev. 246, 253
(1974).
 Clark, Charles E., Jerorrte N. Frank, 66 Yale L.J. 817, 818 (1957).
 Karl Llewellyn, Law and the Modern Mind: .A Symposium, 31 Colum. L. Rev. 82, 85
(1931).

WEB SOURCES:

 http://faculty.tcu.edu/rgalvin/readings/Jerome%20Frank%20-%20Legal%20Realism.doc.