JEROME
FRANK'S
FACT-SKEPTICISM
AND
OUR
FUTURE*
EDMOND
GAHNt
I
WHEN
Dean Rostow
asked
me
to
describe
the
main features of
Jerome
Frank's
legal
philosophy,
I
resolved
that-no
matter
how
tentative
my
sum-
mary might
be-I
must
speak
in
the
perspective of
the
future.
For
one
thing,
this
is
the
way
he
habitually
faced
and
spoke
and
wrote;
it
is
the
way
to
be
faithful
to
his
thought.
For
another,
his
philosophy-which
he
called
"fact-
skepticism"'-is
nothing
more
or
less
than
a bold
confrontation
of
the
future
and
a
flinging
of
gages
at
its
feet.
I
believe
that
Jerome
Frank's
fact-skepti-
cism
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.
For
about
twenty-five
years
Jerome
Frank's
coruscating and marvelously
restless
mind planned
and
built
and
developed
the
meaning
of
fact-skepticism.
Fully
aware
that
his
approach
was
novel,
he
deliberately
repeated and
reiter-
ated
his
doctrines,
phrased them
first this
way
then
that,
and
summoned
analogies
from
every
corner
of
the
cultural
world
to
make
his
ideas
clearer.
To
justify
the
repetitions,
he
used
the
following
story:
"Mr.
Smith
of
Denver
was
introduced
to
Mr.
Jones
at
a
dinner
party
in
Chicago. 'Oh,'
said
Jones,
'do
you
know
my
friend
Mr.
Schnicklefritz,
who
lives
in
Denver?'
'No,' answered
Smith.
Later
in
the
evening,
when
Smith
referred
to
Denver, Jones
again
asked
whether
Smith
was
ac-
quainted with
Schnicklefritz,
and
again
received
a
negative reply.
As
the
dinner
party
broke
up,
Smith
remarked
that
he
was leaving
that
night
for
Denver,
and
Jones
once
more inquired whether
Smith
knew
Schnickle-
fritz.
'Really,'
came
the
answer,
'his
name sounds
quite
familiar.'
"2
Gradually, beneath
the
surface
of
the
repetitions,
the
essential
doctrine
cumulated
and
moved
forward.
In
1930
when
he
wrote
Law
and
the
Modern
Miind,
the
final
chapter,
filled
with uncritical
enthusiasm,
was
entitled
"Mr.
Justice
Oliver
Wendell
Holmes,
the
Completely
Adult
Jurist."
Holmes
had
originated
the
so-called
"prediction
theory"
of
law.
He
had
declared
that
"the
prophesies
of
what
courts
will
do
in fact,
and nothing
more
pretentious
are
what
I
mean by
the
law
....
The
primary rights
and
duties
with
which
juris-
*Address
delivered
at
services conducted
by Yale
Law
School in memory of
Jerome
Frank
on
April
12,
1957.
tProfessor
of
Law,
New
York
University
School
of
Law.
1.
As
the
title
indicates,
this
paper
does
not
purport to
cover
all
of
Jerome
Frank's
juristic
views.
It
is
restricted
to
"fact-skepticism,"
which
he
rightly
considered his
most
characteristic
and
significant
contribution.
2.
FRANK,
COURTS
oN
TamiL
viii
(1949).
JEROME
FRANK'S
FACT-SKEPTICISM
prudence
busies
itself .. .
are
nothing
but
prophesies."
'3
Such
was
the
basis
of
Holmes' approach,
which
Jerome
Frank
accepted as
unimpeachable
in
1930.
By
1949
when
Courts
on
Trial
was
published,
it
began
to
be
apparent
that
fact-skepticism
either
cancelled
the
value
of
Holmes'
theory
or
at
least
re-
quired
a
drastic
reformulation.
4
Finally,
in
1954
Jerome
Frank
acknowledged
openly
that
he had traveled
far
from
his
initial
discipleship.
Here
in
a
single
passage
we
have an
epitome
of
fact-skepticism
and
of its
relation to Holmes' doctrine:
"More
than
twenty
years
ago,
I
tried
pragmatically
to
apply Holmes'
prediction
theory
to
future
specific
decisions
of
trial
courts.
If
such
decisions
could
not
be
prophesied,
then
usually lawyers' prophesies
would
be
of comparatively
little
worth,
since
very
few
trial
court
decisions
are
appealed
and
the
upper
courts
affirm
most
of
those
that
are
appealed.
So
I
enquired
whether,
before
suits
commenced,
lawyers
usually
could,
with
some
high
degree of
accuracy,
foretell
the
specific
decisions
of
the
trial
courts
in
particular
cases....
"I
discovered
that
this
sort
of
prophesying
was
markedly
uncertain.
Why
? Briefly
stated,
these
are
the
reasons:
Most
law
suits
are,
in
part
at
least,
'fact
suits.'
The
facts
are
past
events....
The trial judge
or
jury,
endeavoring
(as
an historian)
to learn
those
past
events,
must
rely,
usual-
ly,
on the oral
testimony
of witnesses
who
say
they
observed
those
events.
The
several
witnesses
usually
tell
conflicting
stories.
This
must
mean
that
at
least
some
of
the
witnesses
are
either
lying
or
(a)
were honestly
mis-
taken
in
observing
the
past
facts
or
(b)
are
honestly
mistaken
in
recol-
lecting
their
observations
or
(c)
are
honestly
mistaken
in
narrating
their
recollections
at
the
trial
....
[T]he
trial
court
(judge
or jury)
must
select
some
part
of
the
conflicting
testimony
to
be
treated
as
reliably
reporting
the
past
facts.
In
each
law
suit,
that
choice
of
what
is
deemed
reliable
testimony
depends
upon
the
unique
reactions
of
a
particular
trial
judge
or
,a
particular
jury
to
the particular
witnesses
who
testify
in
that
particular
suit.
This
choice
is,
consequently,
discretionary:
The
trial
court
exercises
'fact-discretion.'
. . .
No one
has
ever
contrived
any rules
(generalized
statements) for making
that
choice,
for
exercising
that
fact-discretion.
It
therefore
lies
beyond-is
uncapturable
by-rules,
and
it
is
'unruly.'
Being
unruly,
it
is
usually
unpredictable
before
the
law
suit
commences.
"...
[T~he
upper
courts
in
most
cases
accept
the
trial
courts'
'unruly'
fact-findings,
i.e.,
the
trial
court's
exercise
of
its
fact-discretion
remains,
ordinarily,
unreviewable,
final,
undisturbed
....
Lawyers
can
often
(not
always)
make
fairly accurate
guesses
as
to
what
rules
the
courts
will
apply
in
uncommenced
law
suits.
The
difficulty
lies
in
guessing
to
what
facts
the
courts
will
apply
those
rules.
Only
in
a
modest
minority
of
cases
is
that
element
of
the
decisions
foreseeable.
Therefore,
seldom
can
a
'bad'
man
or
a
'good'
man
obtain
from
his
lawyer
the
sort
of
prophesy
Holmes'
theory envisioned....
"The
foregoing
represents
but
a
sketch of
a
complex
subject. However,
it
will
suffice
to
show
the
shakiness
of
Holmes'
prediction
theory.
For
the
most
part,
that
theory
succumbs
to
what
I
call
'fact-skepticism.'"5
3.
Holmes,
The
Path
of
the
Law,
10
HARv.
L.
REv.
457, 458
(1897),
reprinted
in
COLLECTED
LEGAL
PAPERS
167
(1920).
4.
Book
Review,
59
YALE
L.J.
809
(1950).
5.
Frank,
A
Conflict
with
Oblivion:
Some
Observations
on
the
Founders
of
Legal
Pragmatism,
9
RuTGERs
L.
Rxv.
425,
447-49
(1954).
1957]
THE
YALE
LAW
JOURNAL
II
As
we
know,
Jerome
Frank
had
not
set
out
to
answer
or
criticize Holmes:
in
point
of fact
the
outcome proved
a
surprise
to
him,
a
rather
curious
by-
product
of
his
enterprise.
His
chosen
goal was
quite
different.
He
wished
to
dispel
various popular
myths
about
courts
and
trials
so
that
truth
might
light
the
path
to
a
more
rational
and humane judicial
process.
Fact-skepticism
led
him
to
advocate
a
number
of
procedural
and
administrative
changes,
which
he
hoped would
be
informed
by
special
studies
in comparative
law.
Though
even
fact-skeptics may
dispute
the
desirability
of
this
or
that
detailed
proposal,
no
one
can
doubt
that
Jerome
Frank's
disclosures
have
helped
make American
judges
and
lawyers
increasingly
impatient-as
they
should
be--with
the
wooden
technicalities
in
traditional
procedure.
If
you
apply
the
goad
often
enough,
even
an
ox
may
eventually
move.
Nevertheless, the
philosophy
of
fact-skepticism
far
transcends
any
question
or
program
of
procedural
reform.
It
cannot
be
understood
if
one
regards
Jerome
Frank
merely
as
a
penetrating,
critical
and
imaginative
jurist.
"Mere-
ly,"
forsooth;
there
is
an
entire
image
of
him
implicit
in
that
"merely."
To
know
him
at
all
was
to
be
overwhelmed
by
the
extraordinary
scope,
the
opulent
universality
of
his
reading
and
thinking.
Fortunately
for
fact-skepticism,
it
grew and
developed
in
that
phenomenally
gifted
mind
of
his.
There
it
acquired
depth
and
spaciousness,
and
became
coordinate
with the
other
main
currents
of
his philosophy.
The
first
neighboring
current
was
Jerome
Frank's
historiography.
From
the
1920's
until
the
very
end
of
his
days,
he
consistently
defended
the
attitude
called
"historical
relativism."
Among the
various relativists,
he
found
particu-
lar
clarity
and
candor
in
Carl Becker.
It
was
Becker
who
told
the
American
Historical
Association in
1926:
"The
historian
has
to
judge
the
significance
of
the
series of
events
from
the
one single
performance,
never
to
be
repeated, and never,
since
the
records
are
incomplete
and
imperfect,
capable
of
being
fully
known
or
fully affirmed.
Thus
into the
imagined
facts
and
their
meaning
there
enters
the
personal equation.
The
history
of
any event
is
never
precisely
the
same
thing
to
two
different
persons;
and
it
is
well
known
that
every
generation
writes
the
same
history
in
a
new
way,
and
puts
upon
it
a
new
construc-
tion
. ..
"In
this
way
the
present
influences
our
idea
of
the past,
and
our
idea
of
the
past
influences
the
present.
We
are
accustomed
to
say
that
'the
present
is
the
product
of all
the
past';
and
this
is
what
is
ordinarily
meant
by
the
historian's
doctrine
of
'historical
continuity.'
But
it
is
only
a
half
truth.
It
is
equally
true,
and
no
mere
paradox,
to
say
that
the past
(our
imagined
picture
of
it)
is
the
product
of
all
the
present.
....
-7
6.
See
FRANK,
FATE
AND
FR
ED0
pt.
I
(1945).
7.
Becker,
What
Are
Historical
Facts?,
8
WESTERN
POL.
Q.
327,
336-37
(1955).
Pro-
fessor
Leo
Gershoy,
distinguished
historian,
has
kindly
supplied
me
with this
archetypal
statement
of
historical
relativism.
[Vol.
66:
824
JEROME
FRANK'S FACT-SKEPTICISM
This
was
the first of
the
persistent currents
that
fact-skepticism
met
and
blended
with
in
Jerome
Frank's
philosophy.
The
second
was typified
by
Wil-
liam
James
and
Horace
Kallen.
As Becker
vitalized
the
dry
records
of
the
past,
these
philosophers
humanized
the
dry
notions
of
conceptual
thinking.
Concepts,
though
necessary
and
valuable,
must
be
treated
as implements
and
ministers,
not
as
monarchs.
Every
human
being
is
more
than
a
member
of
the
genus,
he
is
also
a
unique
individual.
In
fact,
a
human
being's
most
generic
characteristic
is
his
very
uniqueness.
Many
of
the
relations
and transactions
that
make
human
experience
are
fortuitous,
exuberant,
filled
with
uncaptured
residues,
at
best
pluralistic,
not
to
be
domesticated
completely
by
any
of
our
abstract
terms.
To
Jerome
Frank's
delight,
William
James
used to
refer
to
"wild
facts,"
s
that
is,
those
which
furnish
so
much
of
the
spirited
element
in
our
existence
and
which
our
logical
propositions
and
scientific
laws
simply
fail
to
net.
It
takes
a
more
alert
and
compassionate
nature
than
most
men
possess
to
sense
the
presence
of
"wild facts"
and
respect
their
worth
and
influence.
But
it
was
in
the
juristic
thought
of
Aristotle
that
fact-skepticism
found
its
closest
affinity.
I
mean,
in
Aristotle
as
Jerome
Frank
read and
understood
Aristotle.
Not
that
I
disagree
with
his
interpretation
of
Aristotle;
I
find
it
completely
valid.
Nevertheless,
since
there
are
various
and
conflicting
inter-
pretations,
and
since
I
have
just
referred
admiringly
to
William
James'
plural-
ism,
I
can
hardly
insist
here
that
Jerome
Frank
was
alone equipped
to
under-
stand
Aristotle.
What
did
he
find
in
Aristotle?
He
found:
that
the
general
rules
of
any
legal
order,
if
applied
automatically
and
impersonally,
are
often
unfit
to
handle
the
"wild
facts,"
the
subtle,
unexpected
particulars
and
the
infinite
diversity
of
human
affairs;
that
general
rules
must
be
continually
adjusted,
individualized
and
alloyed
with
considerations
of
equity
to
make
them
more
malleable;
and
that
the
excellence
of
equity
consists
not
in
its
following
but
in
its
refusing
to
follow
established
propositions
of
law.
9
Apparently
Aristotle
realized
that
if
the
rigid,
abstract,
impersonal
norm
is
made
our
king
and
hero,
our
tale
is
liable
to
become
a
tragedy,
for
the
hero
suffers
from
a
fatal
flaw.
In
this
view
of
things,
what
Carl
Becker
did
to
the
inflexible
past,
what
William
James
did
to
the
abstract
concept,
Aristotle
in
his wisdom
had
done
to
the
mechanical
and impersonal
rule
of
law.
These
were
the
three
currents
of
thought
with
which
fact-skepticism
merged,
and
among
them
Aristotle
was
foremost.
On
the
only
occasion
I
recall
when
Jerome
Frank
wrote
as
though
he were
speaking
throtigh
the
mouth
of
an-
other,
it
was
Aristotle
whom
he
chose
for
his
alter
ego.
This
is
what
he
sug-
gested
Aristotle
would
say if
he
were
to
return
after
2300
years:
8.
Frank,
Some
Tamne
Reflections
on
Some
Wild
Facts,
in
VisroX
AND
AcTIoN:
EsSAYS
IN
HONOR
OF
HORAcE
M.
KALLEN
56
(Ratner
ed.
1953).
See
also
Frank,
Civil
Law
Influences
on
the
Comnwn
Law-Sonte
Reflections
on
"Comparative"
and
"Con-
trastive"
Law,
104
U.
PA.
L.
REv.
887,
921-24
(1956).
9.
Frank,
Modern
and
Ancient
Legal
Pragmatimn-John
Dewey
&
Co.
v.
Aristotle,
25
No=R
DAME
LAW.
207, 460
(1950).
For
the
criticism
involved
in
Dewey's
different
approach
to
Aristotle
see
his
ExP
mzNc
AND
NATURE
c.
2
(1925).
19571
THE
YALE
LAW
JOURNAL
"It
is
shocking,
of
course,
to
see
how
this
personal
element
in
justice
has
been
shamefully
exploited by
totalitarian
governments.
They
have
put
the
best
of
things
to
the
most
evil
uses.
But
that
personal
element,
whether
one
likes
it
or
not,
is
an
inherent
part
of
the
decisional
process,
under
any
form
of
government.
It
is
therefore
folly
to
conceal
its
presence
in
the
working
of
courts
in
a
democracy.
To
conceal
it,
indeed,
is
to
ensure
that
it
operates
at
its
worst,
surreptitiously, without
such
intelligent
ethical
restraints
as
experience
and
wisdom
show
us
both
can
be
and should
be
imposed.
Here,
as elsewhere,
we
must
distinguish
the
desirable
and
the
possible.
The
wise
course
is
openly
to
acknowledge
the
personal
element.
and
then
to
do
whatever
can
practically
be
done
to
get
rid
of
its
evils
and
to
bring
about
its
constructive
uses.
For
the rest,
we
shall have
to
put
up
with
it,
however
bad,
as
we
do
with
ineradicable
sickness
and
death.""
These,
I
believe,
are
the
main
attributes
of
Jerome
Frank's
skeptical
philos-
ophy-it
is
vitalistic,
pluralistic,
and
above
all,
personalistic. Suppose
now a
lawyer
is
willing
to
say
that
everything
in
this
exposition
is
true:
will
that
make
him
an authentic
fact-skeptic?
No,
it
will
not, for
acquiescence
is
not
enough.
Even
the
naive
lawyers
who still
live
in
the
conceptualistic
murk
of
the
1920's
will acknowledge
that
past
incidents may
not
always
be
recon-
structed
accurately
in
court.
They
will
concede
quite
cheerfully
that
predic-
tions
are
very
uncertain
before
a
controversy
has
developed-provided,
of
course, no
one
objects
to
their
being
paid,
as
all
of
us
are, for
making
the
pre-
dictions.
Acquiescence
does
not
suffice.
Too
many
who
aver they have
acquiesced
are
ready
to rejoin
their
colleagues
in
the
same
old
idolatry
of
concepts,
where
they
chant
the
same
old
platitudes
in
praise
of
a
wholly
impersonal
"govern-
ment under
law,"
"a
government
of
laws
and
not
of
men."
No
wonder
this
sort
of
self-delusion
provoked
John
Dewey
to
remark,
"A
government
of
law-
yers
and
not
of
men!
'
Who
then
is
a
genuine
fact-skeptic?
I
should
say,
only
those
who
employ
fact-skepticism
among
the
constant
postulates
of
their
thinking,
who
use
it
as
lenses
to
read
the
daily
newspaper,
and
who
endeavor
to
respond
to
its
pro-
found
and
manifold
challenges.
What
are
these
challenges?
III
Before
listing
them
(quite
incompletely,
of
course),
let
me
recall
that
fact-
skepticism is
a
single
doctrine
with
three
associated
prongs.
It
criticizes
our
capacity
to ascertain
the. transactions
of
the
past;'
it
distrusts
our
capacity
to
predict the
concrete
fac-findings
and
value
judgments
of
the
future;
and
final-
ly,
it
discloses
the
importance
of
the
personal
element
in
all
processes
of
choice
and
decision.
Now
we
can
begin
with:
10.
Frank,
suplra
note
9,
at
491.
11.
Private
remark
quoted
in
T.
R.
POWELL,
VAGARIES
AND
VARIETIES
IN
CONSTITU-
TIONAL
INTERPRETATION
24
(1956).
[Vol.
66:
89-4