Jerome New Frank

Jerome New Frank had a distinguished career as a judge but won perhaps even more renown as a legal philosopher and author.

Frank was born September 10, 1889, in New York City. He received a Ph.B. from the University of Chicago in 1909 and a law degree from the University of Chicago Law School in 1912. His next twenty years were spent in private practice where he specialized in the reorganization of corporations.

During the 1930s, Frank became involved in several of the agencies established as part of President FRANKLIN D. ROOSEVELT's NEW DEAL. In 1933 FELIX FRANKFURTER, then a law professor at Harvard, recommended Frank for the position of general counsel to the Agricultural Adjustment Administration (AAA) and the Federal Surplus Relief Corporation. In 1935, however, Frank and several of his staff were fired because they insisted that benefits provided to cotton growers under AAA contracts should be shared with sharecroppers. Almost immediately, Roosevelt appointed Frank as special counsel to the Reconstruction Finance Corporation. From there Frank went to the Public Works Administration (PWA) where he took an active part in the litigation that surrounded Roosevelt's public power program. In his most notable case for the PWA, Frank prepared the government's case in a suit that involved federal construction of electricity distribution systems. The Supreme Court upheld the government's position in Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S. Ct. 300, 82 L. Ed. 374 (1938).

After a brief return to private practice, Frank reentered public service in 1937 when Roosevelt appointed him to the SECURITIES AND EXCHANGE COMMISSION (SEC) at the request of the commission's chairman, WILLIAM O. DOUGLAS. After Douglas's appointment to the Supreme Court in 1939, Frank succeeded him as chairman of the SEC. Two years later in 1941, Frank was appointed to the U.S. Court of Appeals for the Second Circuit, a position that he held until his death.

Frank's opinions were praised for their literary quality as well as for their legal analysis. Characteristically, they drew from a wide range of subjects—history, philosophy, art and literature, sociology, and psychology, to name but a few—as well as from the more standard legal sources. In his concurring opinion in United States v. Roth, 237 F.2d 796 (1956), an OBSCENITY case, Frank cited scientific, psychological, and economic evidence to support his conclusions.

Another theme that runs through Frank's opinions was his concern for persons who are weak and lacking in influence. In United States ex rel. Caminito v. Murphy, 222 F.2d 698, 706 (1955); cert. denied, 350 U.S. 896, 76 S. Ct. 155, 100 L. Ed. 788, he wrote that the "test of the moral quality of a civilization is its treatment of the weak and powerless." In his dissent in United States v. Johnson, 238 F.2d 565, 568 (1956), he argued that a defendant with a meritorious case should not suffer a penalty "because he is guilty of the crime of being poor." On appeal, the Supreme Court accepted Frank's position and reversed the appeals court's decision (352 U.S. 565, 77 S. Ct. 550, 1 L. Ed. 2d 593 [1957]).

Frank's reputation as a jurist was equaled, if not exceeded, by his fame as a legal philosopher. In 1930 he published Law and the Modern Mind. Through this book and his later publications, Frank became known as one of the leading exponents of LEGAL REALISM, a movement that flourished during the 1920s and 1930s.

Legal realism began as a reaction against analytical POSITIVISM with its formalism and emphasis on logic that had dominated legal thought at the turn of the century. In contrast to the positivists who claimed that judges could apply known rules to the available facts and arrive with certainty at their decisions, Frank stressed the uncertainty of the decision-making process. He argued that psychological forces, including personal biases buried so deep in the unconscious that the judge was unaware of their existence, might influence the decision.

Frank was also troubled by the difficulty of determining what was fact and what was not. He observed that courts receive their information months or even years after events occurred from witnesses who may be biased or may simply lack complete knowledge of the events they recount. The possibility that an innocent person might be convicted worried Frank and led him to suggest reforms in the methods for ascertaining certain

facts. His last book Not Guilty, in which his daughter collaborated, dealt with cases in which innocent people had been convicted.

Frank also played a role in LEGAL EDUCATION, most notably at the Yale Law School. In 1932 he became a research associate at the Yale Law School and held the position of visiting lecturer at Yale from 1946 until his death. In addition, in 1931 and in 1946–47 he was a visiting lecturer in law and anthropology at the New School for Social Research in New York City. At Yale Frank advocated changes in legal education including adding more social studies to the curriculum. He also argued that legal education had strayed too far from law as it was actually practiced.

In addition to the works mentioned earlier, Frank's books included Save America First (1938); If Men Were Angels (1942); Fate and Freedom (1945); and Courts on Trial (1949), a major discussion—and criticism—of the U.S. trial system. Frank died January 13, 1957, in New Haven, Connecticut.