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This Study Is a Systematic and Critical Assessment of the Ideas of A This study is a systematic and critical assessment of the ideas of a modern American legal thinker, the late Judge Jerome Frank, who was a leading expo­ nent of the so-called school of American "legal realism". Few other figures on the contemporary American legal scene could claim as fruitful, colorful and active a career as that ofJerome Frank. In a period of forty-five years (1912- 1957), he was a practicing lawyer, a law school teacher, a prolific writer, govern­ ment counsel, administrator, and a federal judge. His untimely death in 1957 ended a rich contribution to the philosophy of American law and a quarter of a century of public service to the nation. As he was a man of broad ideas, the systematic organization of his ideas constituted a real challenge to the author. Therefore, the main purpose of this study is to present a systematic statement of Frank's philosophy of law and its role in modern society. A mere arrangement of a man's idea is useful but not sufficient, so that the second purpose of this study is to make a criti­ cal evaluation of his ideas and their place in recent American legal thinking. The author keeps Jerome Frank in the angle of vision of modern society and modem thought, because these are the things that have influenced his thinking, THE LEGAL REALISM OF JEROME N. FRANK JULIUS PAUL THE LEGAL REALISM OF JEROME N. FRANK A STUDY OF FACT-SKEPTICISM AND THE JUDICIAL PROCESS WITH A FOREWORD BY LEON GREEN University of California • MARTINUS NIJHOFF / THE HAGUE / 1959 ISBN 978-94-011-8684-1 ISBN 978-94-011-9493-8 (eBook) DOl 10.1007/978-94-011-9493-8 Copyright I959 by Martinus Nijhoff, The Hague, Netherlands Softcover reprint of the hardcover 1 st edition 1959 All rights reserved, including the right to translate or to reproduce this book or parts thereof in any form FOR SHaLOM SHACHNE AND EDITH ..... Possessors at virtue and rare courage in the midst at Hostility Foreword Between the Levite at the gate and the judicial systems of our day is a long journey in courthouse government, but its basic structure remains the same - law, judge and process. Of the three, process is the most unstable - procedure and facts. Of the two, facts are the most intractable. While most of the law in books may seem to center about abstract theories, doctrines, princi­ ples, and rules, the truth is that most of it is designed in some way to escape the painful examination of the facts which bring parties in a particular case to court. Frequently the emphasis is on the rule of law as it is with respect to the negotiable instru­ ment which forbids inquiry behind its face; sometimes the empha­ sis is on men as in the case of the wide discretion given a judge or administrator; sometimes on the process, as in pleading to a refined issue, summary judgment, pre-trial conference, or jury trial designed to impose the dirty work of fact finding on laymen. The minds of the men of law never cease to labor at im­ proving process in the hope that some less painful, more trustworthy and if possible automatic method can be found to lay open or force litigants to disclose what lies inside their quarrel, so that law can be administered with dispatch and de­ cisiveness in the hope that truth and justice will be served. No one else has subjected law, jUdging, and the litigation process to deeper probing for so long a period as has Jerome Frank, and no one has more clearly exposed the weaknesses of each. It would be difficult to comprehend the range of his labors. He was a turbulent thinker, in constant eruption, throwing up the thought deposits of all ages and illuminating them with great brilliance. It is no exaggeration to say that the shocks and rum­ blings of his eruptions will continue to be felt in every courthouse in this and other countries. VIII FOREWORD Much of Frank's thinking was directed at tort litigation, for there the rules of law give more latitude for judgment, the process is more extended and the administration is shared more widely by expert and layman than is found elsewhere. His demon­ stration of the unreliability of fact finding in tort cases, whether by judge or jury, is beyond peradventure. Yet, he recognized that though law, judge and process be developed to their highest per­ fection, in the end, as litigants or otherwise, we live under the judgment of our neighbors, from which there is no escape however stupid in the particular case it may be. In facing up to what can be done to make fact finding and fact evaluation more reliable, he ran up against the most diffi­ cult problem of jurisprudence wherever it is found - a problem that seemingly grows more and more insoluble under the pres­ sures of a society in which litigation has all the earmarks of ma­ chine production and big business. But Frank did not yield easily to the impossible and his advocacy of improvement at every point of the litigation process never lost its bloom. Of his specific proposals, some were long range, and dependent upon the educational process; others involved nothing more than procedural improvements in the conduct of trial. But these proposals even in their totality do not reflect the full thrust of his labors. He struck deeper than he perhaps realized. First, he struck conviction in numberless law students, law teachers, judges and practitioners that fact finding is basic to the doing of justice and that the fact finding processes of the courthouse have little re­ liability. Noone can measure the extent or depth of this influence. It is enough here to observe that the sensitivity of the profession as a whole in these respects has risen measurably within recent years, and some of the proposals advocated by Frank are being employed, as for example, non-partisan panels of medical experts in malpractice cases, and special verdicts in jury trials. Others are being advanced by serious discussion. Noone could ask for a quicker or more satisfying response to his labors. Second, perhaps a more important reaction to his influence is the quickening of the movement, already underway when Frank began to write, to reduce the area of investigation of the FOREWORD IX facts in litigation by the substitution of practices requiring a minimum of fact finding. He witnessed, as have we all, the most extensive reduction of the fact finding areas in tort cases, the greatest withdrawal of power from juries, and the most intensive use of scientific fact finding apparatus that have occurred in the development of the common law. This is especially true in the area of torts administered under the action of negligence. The most obvious examples of how the areas of fact finding have been reduced are the cases under the Federal Employers' Liability, Safety Appliance and related Acts; and also under workmens' compensation and comparative negligence statutes. Under these legislative provisions, emphasis has been definitely shifted from the doctrinal issues of liability to the connection of defendant's conduct with the hurt and the extent of the hurt. Relatively speaking, both proof and its evaluation on the issues of causal relation and extent of injury can usually be resolved with more accuracy than can the doctrinal issues designed to de­ termine the "fault" of the parties. The same attitude can be identified in nearly every area of common law tort litigation and especially is it becoming more and more apparent in traffic cases. While great efforts are still made in traffic cases to present the facts in detail, the task of discovering with any accuracy what took place in a few brief seconds of tragedy is impossible, the ultimate findings of a jury are obscured by their verdict, and the reaction of the judges by a thick covering of legal doctrine. What Frank calls the "gestalt" dominates the process and the result. The progressively heavy shadow of insurance reduces the importance of the "fault" issues of liability and increases the importance of causal relation and damages. Similar reduction of the area of fact finding through substi­ tutes for liability based on negligence is found in the food and chemical products cases, in the physician's cases, in the land­ owner's liability for dangerous operations, and elsewhere. The basic issues in all these cases are the fact of injury, its extent, and their relation to the conduct of the defendant. The so-called substantive doctrines become less and less signficant except as they are utilized by appellate courts to control the trial court and jury. Factual data as to causal relation and extent of injury are x FOREWORD more and more frequently developed through scientific proof of many types, as were advocated by Frank. This does not mean that all types of error in fact finding are eliminated, but only that as the areas are reduced and scientific data and opinion are relied upon, the chances of error are reduced. It will have been observed that no distinctions have been made between substantive and procedural law. Frank doubted, as I doubt, that tort law can be so set off in any meaningful sense. Whether res ipsa loquitor, negligence per se, presumptions, re­ quirement of expert evidence, implied warranty, burden of proof, standards of care, assumed risk, contributory negligence, proxi­ mate cause, and all the other aspects of determining duties and violations of duties, can be classified into substantive and pro­ cedural, could be debated indefinitely without agreement.
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