Jerome Frank

Jerome New Frank (September 10, 1889 – January 13, 1957) was an American legal philosopher and author who played a leading role in the legal realism movement. He was chairman of the U.S. Securities and Exchange Commission, and a United States circuit judge of the United States Court of Appeals for the Second Circuit. Born in New York City, Frank's parents were Herman Frank and Clara New Frank, descendants of mid-19th-century German Jewish immigrants. Frank's father, also an attorney, relocated the family to Chicago, where Frank attended Hyde Park High School, before receiving his Bachelor of Philosophy degree from the University of Chicago in 1909. Frank obtained his J.D. degree from the University of Chicago Law School in 1912, where he had the highest grades in the school's history, despite leaving the program for a year to work as secretary to reformist Chicago alderman Charles Edward Merriam. Frank worked as a lawyer in private practice in Chicago from 1912 to 1930, specializing in corporate reorganizations, and becoming a partner in his firm in 1919. Frank was a legal skeptic, characterizing cases through an equation: R x F = D, where R stands for the applicable legal rule; F signifies the facts of the case; and D signifies the decision. He distinguished two classes of American legal realists: rule skeptics and fact skeptics. In 1930, after having undergone six months of psychoanalysis, Frank published *Law and the Modern Mind*, which argued against the "basic legal myth" that judges never make law but simply deduce legal conclusions from premises that are clear, certain, and substantially unchanging. Drawing on psychologists such as Sigmund Freud and Jean Piaget, Frank proposed that judicial decisions were motivated primarily by the influence of psychological factors on the individual judge. Like his judicial hero, Justice Oliver Wendell Holmes Jr., Frank urged judges and legal scholars to acknowledge openly the gaps and uncertainties in the law, and to think of law pragmatically as a tool for human betterment. The book "dropped like a bombshell on the legal and academic world", quickly becoming "a jurisprudential bestseller" which "was widely noticed as well as criticized". In 1930, Frank moved to New York City, where he practiced until 1933, also working as a research associate at Yale Law School in 1932, where he collaborated with Karl Llewellyn of Columbia Law School, and feuded with legal idealist Roscoe Pound, dean of the Harvard Law School. In 1933, Frank published a landmark article proposing hands-on ("clinical"), not just book-based, education for law students. Frank's judicial service (1941–1957) did not stem his scholarly output. In 1942, he published *If Men Were Angels*, a defense of the ambitious New Deal programs, and governmental regulation in general, expressing views that he developed while serving in the SEC. In 1945, he published *Fate and Freedom*, which attacked the theoretical underpinnings of Marxism, denying that societies followed any strict progression and insisting that people were free to mold the development of their own society. Beginning in 1946, Frank also began teaching a regular course on legal fact-finding at Yale Law School which "emphasized the parts that human fallibility and partisanship play in the trial court processes". In 1949, he published his most significant work after *Law and the Modern Mind*, this being *Courts on Trial*, which stressed the uncertainties and fallibility of the judicial process. In 1951 he moved from New York City to New Haven, Connecticut, preferring to live closer to Yale. His last book, *Not Guilty* was written with his daughter, and published following his death. The book concerned specific cases of people who had been wrongfully convicted of crimes. During the New Deal administration of President Franklin D. Roosevelt, Frank sought the assistance of Felix Frankfurter to secure a position with the administration. Frank was initially offered the position of solicitor of the United States Department of Agriculture, but this appointment was blocked by Postmaster General James A. Farley, who favored another candidate for the job. Frank was then appointed as general counsel of the Agricultural Adjustment Administration in 1933, and soon became embroiled in an internal struggle with the agency's head, George Peek, who had tried to exercise complete control over the agency. Peek resigned in December 1933, and Frank continued to serve until February 1935, when he was purged along with young leftist lawyers in his office. Roosevelt approved the purge, but made Frank a special counsel to the Reconstruction Finance Association in 1935. Frank returned to private practice in New York from 1936 to 1938, with the firm of Greenbaum, Wolff and Ernst. In 1937, William O. Douglas recommended that Roosevelt appoint Frank to be a commissioner of the Securities and Exchange Commission, which Douglas then chaired. Roosevelt agreed, and Frank served as an SEC commissioner from December 1937 until 1941, and was elevated to Chairman from 1939 to 1941, when Douglas was appointed to the United States Supreme Court. While serving in the SEC, Frank also served on the Temporary National Economic Committee. In 1938, Frank also published a book titled *Save America First*, which had been written during his return to private practice and advocating against American involvement in the stirring conflict in Europe. However, Frank recanted those views after the attack on Pearl Harbor, and Roosevelt forgave Frank's isolationism. Frank was nominated by President Franklin D. Roosevelt on February 13, 1941, to a seat on the United States Court of Appeals for the Second Circuit vacated by Judge Robert P. Patterson. He was confirmed by the United States Senate on March 20, 1941, and received his commission on March 27, 1941. His service terminated on January 13, 1957, due to his death. Frank was considered a highly competent judge, often taking what was perceived as the more liberal position on civil liberties issues. In addition to his reputation for expertise on civil liberties matters, he was also considered to be "an outstanding judge in the fields of procedure, finance, and criminal law". For a time, he was sharply and vocally at odds with a colleague on the bench, Charles Edward Clark, "over a whole range of common law precepts". In a tribute when Frank died, Clark referred to these disagreements as "glorious battles" and called Frank "a gladiator of unusual power and adroitness," who "never seemed to harbor permanent spite of any form whatsoever." Frank's scholarly tendency bled over into his judicial opinions, some of which were notoriously lengthy. As a judge, Frank wrote the opinion in February 1952 affirming the convictions of Julius and Ethel Rosenberg, who had been convicted of conspiracy to commit espionage. In reviewing the case as part of a three-judge panel, Frank rejected each of the Rosenbergs' arguments on appeal. Frank denied that the death penalty imposed on the Rosenbergs was cruel and unusual punishment, but privately he had advised trial judge Irving Kaufman not to sentence the Rosenbergs to death. In his opinion, he also suggested that the Supreme Court might want to revisit the questions about the death penalty for crimes similar to treason. In a related case, however, Frank dissented from his two colleagues by voting to grant a new trial to an accused third conspirator, Morton Sobell. The jury, according to Frank, should have been permitted to decide whether Sobell had joined the other conspirators in their plan to send atomic information from Los Alamos to the Soviets, or had merely engaged in a separate, less significant conspiracy with Julius Rosenberg to transmit non-atomic information. In the 1956 case *United States v. Roth*, Frank wrote a concurring opinion to the decision, which affirmed the obscenity conviction of a criminal defendant. In a lengthy appendix to his concurring opinion, Frank "drew on a host of historical, literary, and social science studies to point to the dangers and contradiction of all forms of government censorship of ideas and images". The case was affirmed by the United States Supreme Court the following year, in *Roth v. United States*, which noted Frank's approach. The concurrence has been asserted to be one of Frank's most important opinions, and one which set the stage for the direction the Supreme Court would take on such issues beginning in the 1960s. Frank married Florence Kiper on July 18, 1914, and they had their only child, daughter Barbara Frank, on April 10, 1917. Florence Frank, herself a poet and playwright, said of her husband: "Being married to Jerome is like being hitched to the tail of a comet". Frank enjoyed word games, puns, and charades. Frank died on January 13, 1957, of a heart attack in New Haven, Connecticut. Frank's extensive personal and judicial papers are archived at Yale University and are mostly open to researchers. Yale Law School's clinical programs are housed in the Jerome N. Frank Legal Services Organization, named in recognition of Frank's early championing of adding a clinical component to legal education. Frank had published many influential books, including *Law and the Modern Mind* (1930), which argues for ‘legal realism’ and emphasizes the psychological forces at work in legal matters. In 1965, his daughter Barbara Frank Kristein published *A Man's Reach: The Selected Writings of Judge Jerome Frank,* with a foreword by William O. Douglas and an introduction by Edmond Cahn of New York University School of Law. At least one legal commentator has written that "few jurisprudential writers have aroused such prolonged public controversy as Jerome Frank".