Jerome Frank occupies an odd place in the intellectual history of American law. He and Karl Llewellyn were long considered the two thought-leaders of probably the most important movement in legal thought of the twentieth century, legal realism. And his most famous contribution to legal theory, Law & the Modern Mind, is still regarded as a legal classic. But at a time of renewed scholarly attention to legal realism, Frank is typically characterized these days as an “extreme” realist, who was a peripheral figure within that movement. He tends to be treated as an erratic, if perhaps brilliant, thinker who made some insightful critiques but who never even attempted to develop anything like a coherent theory of adjudication or a constructive vision for legal reform. This view of Frank seems to me deeply mistaken, and the aim of this essay is to correct it. I do so by offering a close reading of his most famous and controversial work, Law & the Modern Mind. My argument, in short, is that generations of scholars have misinterpreted this book because they have misunderstood Frank’s philosophical worldview and, therefore, his intellectual ambitions. If one takes Law and the Modern Mind on its own terms and if one reads its argument as a whole, rather than simply as a series of one-off critiques, one can see that Frank did not deny the possibility of rational legal decisionmaking, but rather sought to articulate the habits of mind and character on which he believed the sound administration of justice depended. Understanding Frank’s true concerns matters today because the questions he raised remain unanswered, and many of today’s proponents of a “new legal realism” deem them hardly worth asking.

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Jerome Frank and the Modern Mind

It is a rather sad fact that jurisprudence, for those who follow the subject, has always been a name-game. Mention a movement positivism, utilitarianism, Scandinavian realism, whatever and, more often than not, certain core representatives of that movement can, as if automatically, be summoned to mind. In Britain, the core representatives of the movement which we call American legal realism are commonly considered to be Karl Llewellyn and Jerome Frank. Llewellyn's work has without doubt made its mark on British legal scholarship.1 To assert the same of Frank, however, would be rather more contentious. From his first formal introduction into British jurisprudence, Frank was characterized as the prime representative of the radical tendency in American legal realism the realist who turned his back on legal rules and declared them to be well nigh valueless.2 This characterization became official, as it were, with the publication of Hart's The Concept of Law in 1961. Distinguishing formalism and realist rule-scepticism, Hart criticizes the rule-sceptics for focusing only on the function of rules in judicial decisions and ignoring those secondary rules which confer judicial and legislative power.3 Hart considered Frank's work to be illustrative of the sceptical tradition in American legal realism,4 though Frank himself distinguished scepticism as to rules and scepticism as to facts, declaring himselfas we shall see to be a factsceptic. An unfortunate consequence of Hart's formalism-scepticism distinction, and his citation of Frank as an exemplary sceptic, I would argue, is that Frank's jurisprudence has come primarily to be conceived as a critical

https://www.jstor.org/stable/info/1410136

Jerome Frank and the Legacy of Legal Realism

According to a dominant view, for the negligent defendant to be held liable for the plaintiff's harm the plaintiff must establish first, that the breach was the ‘factual cause’ of the harm, and second, that the harm is within the ‘scope of liability’. On this view, factual causation is purely factual, while scope of liability is normative and non-causal. This article accepts the basic two-step approach, but argues that the distinction is overstated. A close analysis of the principles shows that factual causation may require value judgment, and that scope of liability often involves an assessment of the strength and nature of the causal connection between breach and harm.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2431070_code609399.pdf?abstractid=2431070&mirid=1

‘Factual causation’ and ‘scope of liability’: What's the difference?

The traditional paradigm, or “standard conception”, of professional legal ethics holds that lawyers are not accountable morally for their lawful actions on behalf of the client or for the outcome of representation. The “twin pillars” of the standard conception, neutrality and partisanship, mandate their behaviour, commanding the lawyers’ distinctive “role morality” in an adversarial system. The principle of neutrality demands that they take clients, irrespective of the moral worth of their cause, and the principle of partisanship requires them to represent them to the best of their ability or, in some formulations, zealously. Cause lawyers appear to challenge this conception of lawyers’ ethics by undermining neutrality and partisanship. They deny neutrality, it is said, because they select their clients for the cause they represent. They deny partisanship because they make a moral imperative, furthering the cause, rather than the interests of their client, the main aim of representation. Pursuing these priorities, cause lawyers also risk contravening the professional rules that render these principles operational, for example, those subjecting partisan advocacy to a duty to the court. Such practises are anathema to the traditional ethical paradigm, for their challenge to established rules and their underlying basis and rationale; the independence and detachment of lawyers and the law and the pre-eminence of client goals. There are many questions arising from the practice of cause lawyers of potential interest to empirical researchers, students of the legal profession and ethicists. A striking feature of the phenomenon is the moral ambiguity of their position. On the one hand, cause lawyers present a deviant model of lawyering, representing values that are inimical to traditional notions of justice and ethics based on a due process, adversarial procedure and advocacy. On the other, they offer an alternative to the morally ambiguous role of “hired gun”, played by lawyers in such a process, by seeking personal commitment and involvement with clients as a basis for what they do on their behalf. A study of cause lawyers is potentially a case study of an alternative ethical paradigm, one that eschews standard applications of neutrality and partisanship in favour of allowing lawyers broad scope in deciding who to represent and on Legal Ethics, Volume 7, No. 2

Cause Lawyers and the Alternative Ethical Paradigm: Ideology and Transgression

This article examines the legal status of the corporation in light of the U.S. Supreme Court’s decision in Citizens United v. Federal Election Commission that corporations have political free speech rights equivalent to natural persons. In Citizens United, Justice Kennedy wrote that corporations were disadvantaged persons because the government had intruded upon their freedom of speech. The Citizens United majority portrays a misleading image of corporations. It is true most corporations are owned by small groups of individuals, managed by their owners, and limited in size and revenues. But what the Citizens United majority conveniently ignores is one particular attribute which has existed for at least one hundred years — that exceptionally large corporations, controlled by a handful of individuals, have amassed great quantities of wealth and power which dwarf the resources of the individual electorate, as well as the corporations’ own minority shareholders, ultimately diluting individuals’ political voice. We conclude that with its newly acquired constitutional rights, the corporation is perhaps now ready to dominate not just commerce, but the political system as well.

https://papers.ssrn.com/sol3/Delivery.cfm?abstractid=1973942

The Supreme Court as Prometheus: Breathing Life into the Corporate Supercitizen

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The Firstness of the First Amendment

/pdf/jerome-frank-s-fact-skepticism-and-our-future-3yehszh35j.pdf

Jerome Frank's Fact-Skepticism and Our Future

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Local law in federal taxation

This paper is an attempt to describe a specific process of learning, that is, the process by which a human individual may learn to demand equality for himself and for others. How can he evolve the notion of equality out of the texture of his own primitive experience and learn it so intimately that he will fight to impose it on his surroundings? The question is certainly not an easy one. In the first place, though we may differ among ourselves as to the existence and force of innate capacities, we shall probably all agree in rejecting any suggestion of innate ideas. Equality is not an idea born with us. Secondly, there is a grave danger in distinguishing however tentatively between a human being and his environment, for the distinction-necessary in itselftends to grow into a fallacious separation. A human being is indeed a part of his own environment, not only as he shares in its processes and is taught its values, but even more familiarly as he lives with himself and shapes the moving course of his own feelings and purposes. In the third place, the notion of equality so thoroughly permeates 20th century thought on every social and political level and on every continent, that we can never be certain of the ratio between what is discovered and what has been taught in any single instance of its manifestations. And it is only fair to say at the outset that showing how the standard arises would not by any means demonstrate its validity in theory or in action. The undertaking is particularly difficult for a lawyer. Equality may be a familiar idea to others; to him it is part of the atmosphere he looks through and breathes-indispensable, unnoticed, and Protean in its appearances. For example, there is the \"logical\" equality proclaimed in the French Revolutionary Constitution: \"Equality consists in the fact that the law is the same for all.\" Of course it is. As Anatole France said: \"The law in its majestic equality forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.\" A dry \"logical\" equality that means no more than inclusion in some verbal class to which positive law has assigned a right, interest, or

Edmond N. Cahn

Papers

The Firstness of the First Amendment

Jerome Frank's Fact-Skepticism and Our Future

Local law in federal taxation

Ego and equality