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. They are complex concepts subject to extended analysis, useful in dealing with tort cases, and if they could be classified as substan• tive and procedural, they would probably be found to be both. What is important is not their classification, but the fact that each may be and is frequently used to narrow the field of factual data for the purposes of judgment, whether that of judge or jury. It is believed that courts more and more seek to avoid the difficulties of comprehensive fact finding because it is frequently administratively impossible to find the facts, even though court personnel, time and money were available to make the attempt. Personnel, time and money are not available, and factual data are quickly resolved into interminable details, opinion, belief, speculation, surmise, prejudice, feelings and other imponderables so extravagant that they cannot be clutched. Moreover, if the details could be determined with accuracy, they are too difficult to evaluate in terms of legal doctrine. Thus, the fact finding process is cut short, and thus a court will permit a jury to impose, or itself impose, liability upon a defendant without too close an examination of the facts, once it is shown that the victim's injury is linked to the conduct of the defendant. Even so restricted, Jerome Frank did not approve jury trial as a good method of fact finding. Jury trial permits too great a slurring of the facts even on restricted issues - too great a power to dominate the whole case by shaping facts to support the end desired. But he insisted that so long as we have jury trial, it FOREWORD XI should be given a fair chance, its verdict accepted and not uprooted by insistence on doctrinal refinements shaped by appel• late courts, designed also to reach an end desired and even more to be distrusted. And this leads me to conclude that whenever injuries occur with constancy and in great numbers, such as in the automobile cases, under circumstances that make it impossible to discover the facts with relative accuracy, or when risks are imposed be• yond the control of those whose operations impose them, and the victims have no means of providing protection of their own, tort law must give way to some form of insurance or other means of loss distribution by which the risks are shared by the group as a whole. Whenever fact finding is a vain attempt, as has been demon• strated by Frank to be too frequently true, some way must be found to take care of the victim without knowing all the facts. The operation of the orthodox judicial process may for a period obscure what is taking place, but sooner or later, the process will be modified to reflect the necessity. The influence of Jerome Frank in this direction will bear fruit abundantly and for a long time. LEON GREEN Formerly Dean of the Law Schools of the University of North Carolina and Northwestern University; Currently Distinguished Professor of Law, Hastings College of Law, University of California, San Francisco, California Acknowledgements

With the deepest sense of appreciation, I want to acknowledge the guidance and inspiration of my former teacher, Professor Francis R. Aumann of the Department of Political Science of The Ohio State University, without whose help this book would not have been possible. His was the steady hand and mind that kept me on the road to completion. Although they did not have any direct connection with the writing of this book, I cannot ignore the intellectual inspiration and kindness that Professors Kurt H. Wolff and John W. Bennett of the Department of Sociology and Anthropology, and Professors Emeritus H. Gordon Hayes and Arthur Salz of the Department of Economics, afforded me. In my first years in the Graduate School of The Ohio State University, they were the teachers who kindled my interest in the scientific method and in social and intellectual history, which have been invaluable to me in the writing of this book. I am also indebted to the Graduate School of The Ohio State University for awarding me a University Fellowship in 1954, and to the Graduate School of Southern Illinois University for research grants in 1956-1958, which were instrumental in the completion of this work. The School of Law Library of Washing• ton University (St; Louis) was indispensable to my labors, and to them, and particularly Miss Jean Ashman, the law librarian, I am deeply grateful. I want to thank the editors of the following journals for per• mission to reprint in whole or in part the following articles of mine: "Jerome Frank's Ideas on the Relation of Legal Education to the Judicial Process," Journal of Legal Education (Vol. 9, No. 2, December 1956, pp. 177-185) ; "Jerome Frank's Views on Trial by Jury," Missouri Law Review (Vol. 22, No.1, January XIV ACKNOWLEDGEMENTS 1957, pp. 28-37); "The Role of the Judge in Jerome Frank's Philosophy of Law," Oklahoma Law Review (Vol. 10, No.2, May 1957, pp. 143-166), originally copyrighted in 1957 by the Univer• sity of Oklahoma Press; "Jerome Frank's Attack on the 'Myth' of Legal Certainty," Nebraska Law Review (Vol. 36, No.4, June 1957, pp. 547-563); "Foundations of American Legal Realism," West Virginia Law Review (Vol. 60, No.1, December 1957, pp. 37-54); "Jerome Frank's Contributions to the Philosophy of American Legal Realism," Vanderbilt Law Review (Vol. 11, No. 3, June 1958, pp. 753-782), originally copyrighted in 1958 by the Vanderbilt University Press. The foreword by Professor Leon Green originally appeared as a paper entitled "Fact Skepticism and Tort Law," which he gave at the 1957 Jurisprudence Roundtable on Jerome Frank's "Fact Skepticism" at the annual meeting of the Association of American Law Schools, San Francisco, California, December 29, 1957. I wish to thank him for his gracious permission to use his paper. And last, but not without pre-eminence, I want to thank my wife, Laura Rankin Paul, who was a wonderful helpmate through• out the writing of this book. JULIUS PAUL

Carbondale, Illinois, September 15, 1958. Glossary of Words and Phrases Used in this Book

Throughout this study, I have used numerous words and phrases that might seem novel to those who are unfamiliar with Jerome Frank's writings and the writings of other legal realists. Many of the terms used by Frank are of his own invention, while others bear the mark of his tampering or interpretation. I have omitted those terms that were defined in the body of the book.

"action approach" - Refers to those legal realists who stress legal action (i.e., decisions) as against legal ideals or values in their methodology. "analytical jurisprudence" - Refers to the school of legal thought that followed the teachings of John Austin. It is more accurately referred to as the "imperative" or "command" theory of jurisprudence. "basic legal myth" - The myth that legal rules can provide certainty and exactness in the law. "behavioristic jurisprudence" - Referes to those extremists who, like Malan and Schroeder, believed that law was exclusively a function of psychological predispositions of the individual judge. "black-letter law" - Law in books and books only. Another phase of what Frank would regard as traditional legal rule certainty. "Cadi" or "Kadi" or "Cadi-justice" - A term borrowed from Islamic practice referring to a specially chosen and presumably ob• jective judge of the law and the facts. Frank applied this term to the jury, which he believed was both the fact-finder and witness• audience. "case book method" - Refers to the technique used in American law schools for teaching law through the use of books containing selected cases on a particular branch of law, e.g., contracts, torts, or property. This method was first used on an organized basis at the Harvard Law School under the sponsorship of the late Dean Chris• topher Columbus Langdell. "certainty seeking" - The search for absolute certainty in the law through the use of legal rules or other guides, a view which Frank found dangerous and reprehensible. XVI GLOSSARY OF WORDS AND PHRASES "conceptualist" - A term used by the legal realists to describe those who believe in legal rules. "correct" or "just decision" - According to Frank, a decision that results from the application of the right rule (R) to the most objective facts of the case (OF) in order to give the decision (D). "court-house government" - A term that Frank used frequently, referring to the whole judicial process but particularly to the action of trial courts, which he considered the heart of the legal system, and which includes not only trial court decisions, but the work of juries, the attitudes of trial lawyers, appellate or upper-court judges and their decisions, administrative agencies, and everything connected with cases that are tried in courts of initial jurisdiction. "executive justice" - Law that is made, expanded, interpreted, or altered by the action of administrative tribunals or by government officials outside of the traditional courts and the results therein that are sometimes characterized by this term of opprobrium. "fact-skeptics" - These are the legal realists who peer not only behind the paper rules but also behind the lacts of a case, e.g., Frank and Arnold; sometimes termed "three dimensional legal thinking" by Frank. "father authority" or "father-substitute" - Frank's notion that the father is a judge whose authority passes over to the Law after childhood ends, i.e., the Father-as-Judge becomes the Law-as-Father. This is part of Frank's description of the basic1egalmythofrulecertainty. "fight theory" - The attempts of lawyers to win cases by swaying the judge and the jury, not by trying to find the "objective" facts of a case, the "truth" as it were. "functional jurisprudence" - A term used to broadly denote the school of legal thinkers who followed Holmes and the pragmatic philosophers (especially James and Dewey) and which includes the sociological jurisprudence of Pound as well as the various branches of American legal realism. "free phantasy technique" - Refers to Lasswell's method, borrowed from Freudian psychoanalysis, of allowing a person to speak freely of his past memories in order to throw light on his present behavior. "gestalt," "composite," or "contrapuntal" - These are all terms that Frank used to describe the complex psychological and environ• mental factors that operate in the mind and personality of an individu• al judge when he makes a decision. "government of laws" - For Frank, this term is the counterpart of the worship of rules in the political realm and can therefore be classified as a myth. "government of men" - Frank's definition of what actually exists, as against the belief that a government is law and not a group of men who make and interpret the law. GLOSSARY OF WORDS AND PHRASES XVII "inherent inexactitude" - Frank's view of the law as it actually operates, which prevents certainty. Consequently, without certainty and predictability, no science of the law is possible, according to his view. "j udicial fact -finding" - The process of "discovering" or finding the facts of a particular case by the judge, the jury, lawyers, and the other participants in a triaL "judicial hunch" or "legal hunch" - The idea, as expressed in the writings of Frank, Hutcheson and others, that the decision of a judge is in reality the result of a "hunch" or guess. "judicial self-awareness," "judicial restraint," "judicial self-limi• tation," or simply "conscious jurist" - The qualities that Frank believes every judge should possess if he is to understand himself, human nature, and the judicial process. Synonomous with the "mature" or "adult" jurist, as exemplified by Justice Holmes and Learned Hand. "judge-made law" - Law made by the judges in their opinions in the sense of interpretation, expansion, or clarification of statutes, administrative decrees, and the like. "jury-made law" - According to Frank, law that is "made" by a jury as a result of its finding of the facts in a specific case. "jural order," "legal order," "legal system," or "judicial system" - These are all terms that refer to the administration of justice in the United States and to the over-all Anglo-American tradition of trial by jury, due process of law, the right to appeal, etc. "jurisprudence" - I will not hazard a definition of this term, but when it appears, it refers to any writing on legal ideals, institutions, or history that bears a philosophical imprint. For the most part, this term is used synonomously with "legal philosophy" or "legal thinking" in this study. "law-teacher schools" - According to Frank, these are the law schools that have men on their faculty who have had no practical legal experience and whose major interest is in the training of law teachers and not lawyers. In contrast to "lawyer-schools," or schools with men of wide and varied legal experience who have the necessary background for the training of practicing lawyers. "legal actualism," "legal observationism," "experimental juris• l'rudence," "pragmatic jurisprudence," "possibilism," "legal mode• sty" - These are all synonyms for Frank's description of the legal realist approach to the study of legal behavior. "legal axioms," "wish assumptions," "is assumptions" - This is Frank's distinction between those statements about law that are purely descriptive of what is and those that prescribe what ought to be, or between the "ought" and the "is." "Legal axioms" refers to the so-called "self-evident truths" about the law. "legal codification" - The attempt to systematically organize XVIII GLOSSARY OF WORDS AND PHRASES legal rules, principles, precedents, etc. into codes that judges can use when making decisions, which for Frank is simply another example of the belief in the myth of legal certainty and an almost fetishistic belief in legal rules. "legal functionary" - A term applied to judges who serve as the value-creators and value-interpreters for the community. Socio• logically-oriented writers on law, e.g., Pound, Rheinstein, and Ehr• lich, use this term or similar terms in the sense of a judge whose job it is to find the best possible means for adjusting law to the social interests and aspirations of the community he serves. "legal fundamentalism," "legal absolutism," "traditionalism," "Bealism" - Frank's term of reference for the theory that the law consists only of paper rules. "legal logic-chopping" - Frank's derogatory reference to the use of syllogistic reasoning in jurisprudence, especially by people such as Beale and Adler. "legal magic" - The traditional conception of a mechanical ap• plication of R X F gives D, which fails to approximate the realities of the judicial process. The notion that this formula will produce legal certainty is, according to Frank, the equivalent of a primitive reliance on supernatural magic. "legal realism" or "realistic jurisprudence" - This referes not only to a school of modem American legal thinking, but to a general point of view towards the study of law, principally skeptical of a blind reliance on legal rules, pragmatic and experimental in its outlook, and with its main emphasis focused on the study of law in action. "legal rule certainty" or "rule certainty - The slavish reliance on rules and the belief that legal rules can provide a complete basis for predicting future legal action. "library-law" - Frank's reference to Dean Langdell's emphasis on the written materials of legal study (especially the legal rules), as against the study of the law in action. "nominalist" - A term of opprobrium used by the non- and anti-realists to describe Frank and others who presumably do not believe in the existence or efficacy of legal rules. "non-absolute" - A term used by Barrett to describe the position of Frank, and one that Frank would have accepted without qualifi• cation. "objective facts," "real" or "actual facts," "OF" - What took place prior to litigation, but is never accurately or completely recon• structed in a trial. "paper rules" - The recorded legal rules, precedents, and prin• ciples of law that guide judges in making their decisions. "pre-trial fact-finding" - Frank's suggestion, borrowed from the S.E.C. and other administrative agencies, for gathering the facts prior to a trial or administrative hearing. GLOSSARY OF WORDS AND PHRASES XIX "procedural reformers" - This term refers to those who believe that procedural reforms will make legal certainty and stability a part of the judicial process and who are regarded by Frank as another breed of "rule-fetichists." "psychological jurisprudence" or "psychological realists" - Refers to Frank, Lasswell, Robinson, West, Oliphant and others who rely on a psychological analysis of law. While Frank would utilize for the most part the work of child psychology, Lasswell would stress psycho• analysis. West would capitalize on his psychiatric training, while Robinson was a psychologist by profession. "robe-ism" - Frank's term for judges who feel that the majesty of the law is transferred to the public mind by the wearing of judicial robes, elaborate judicial proceedings and the like, a view that he berates as another example of the Law-as-Father. "rule-fetichism," "rule certainty" or "rule worship" - Undue worship of the legal rules as constituting the fundamental sources of law. "rule-skeptic" - According to Frank, these are the "right-wing" legal realists who are skeptical of the legal rules, but not the facts as found in particular cases, e.g., Llewellyn. "scholasticism" and "platonism" - When used by Frank, these terms are synonomous with "Bealism," "legal fundamentalism," and "legal absolutism." "Scholasticism" was also used by Oliphant. "sociological jurisprudence" - Roscoe Pound's theory of law as the institutional means for satisfying and protecting the social inter• ests or ideals of a particular community at a particular time. "subjective facts," "SF" - The facts that are brought out at a trial and which are less than objective because of the element of human memory and human fallibility, or what Frank would call the "inherent inexactitude" of the fact-finding process. "temporary absolutes" - Provisional or contingent rules, princi• ples, ideals, or assumptions that must constantly bear the test of experience and critical evaluation, and which constitute the basis for Frank's philosophy of "possibilism." "trial-by-combat" or "fight theory" - The game that adversaries play in the court room in their attempt to win cases for their clients, rather than attempt to discover the "truth" as nearly as is humanly possible. "trial court" - Any court of original jurisdiction where the facts are initially investigated and presented in a specific case. For Frank, the trial court is the heart of what he calls "court-house government." "truth theory" - The opposite of "fight theory," or what Frank would regard as the ideal basis for court room behavior, namely, the attempt to ascertain the "objective" facts of the case, irrespective of what party wins. "upper-court myth" - The myth that upper or appellate courts XX GLOSSARY OF WORDS AND PHRASES are the most important courts that decide cases, whereas the major legal activity, according to Frank, takes place at the level of trial courts and juries. "the value of lay ignorance" - Frank's description of one of the ways in which the worshippers of rules preserve the basic legal myth, namely, by keeping the lay public unaware of legal reality and the true nature of the judicial process. "word-magic" or "verbomania" - The use of legal language in the perpetuation of lay ignorance about the law and especially the perpetuation of the basic legal myth of rule certainty. Synonomous with "Wousining." "Verbomania" was a term that was also employed by Oliphant. "Wousins" or "Wousining" - A term created by Frank and used in Law and the Modern Mind (at p. 57) to illustrate the word-magic and excessive verbalism of the legal fundamentalists, especially Beale. Table of Contents

FOREWORD BY LEON GREEN VII

ACKNOWLEDGEMENTS XIII

GLOSSARY OF WORDS AND PHRASES USED IN THIS BOOK XV

INTRODUCTION 3 A Short Note on Methodology 7 A Brief Biographical Sketch of Jerome Frank 8

CHAPTER ONE - Foundations 01 american legal realism 13 Holmes' Legal Positivism: The Forerunner of Legal Realism 16 Roscoe Pound's Sociological Jurisprudence 18 Institutional and Anthropological Approaches to Law 21 Legal Realism and the Psychological Approach to Law 23 Jerome Frank's Contribution 26

CHAPTER TWO - The crusade against the "myth" 01 legal certainty 31 Why Do Men Crave Legal Certainty? 35 Legal Certainty: Frank's "Wasteland" of Modern Law 39 The Road to Liberation 42 The Consequences of Frank's Attack 46

CHAPTER THREE - Psychology as the new weapon 01 attack 51 Frank's War of Liberation 57 The Use of Psychological Materials: Jurisprudence as Therapy 59 The Future of Psychological Tools in the Study of Law 65

CHAPTER FOUR - The role 01 the judge in the judicial process 69 What Courts Do In Fact 73 The Anatomy of Court-House Government 76 The Judicial "Hunch": The Contrapuntal Strains of Frank's Analysis of the Judicial Process 78 The Upper-Court Myth and Its Effects: Rule-Skepticism and Fact-Skepticism 81 Metaphysical Questions 91 XXII TABLE OF CONTENTS

CHAPTER FIVE - Trial by jury and the problem of legal edu- cation 93 Major Defects of the Jury System 98 Suggested Reform of the Jury System 99 The Conviction of Innocent Men 101 Jury Verdicts and the Problem of Cadi-Justice 104 The Relation of Legal Education to the Judicial Process 106 How to Improve Legal Education 107 Fusing Law and the Social Sciences: The Inter-Disciplinary Approach 111

CHAPTER SIX - Frank's contributions to the philosophy of A merican legal realism 117 Legal "Axioms" and Frank's Suggested Remedies 124 Criticism and Counter-Criticism of Jerome Frank's Philosophy of Law and of Legal Realism in General 129 The Troublesome Problem of "Fact" and "Value" 143

SOME SELECTED OPINIONS OF JUDGE JEROME FRANK 151

A BIBLIOGRAPHY OF THE WRITINGS OF JEROME N. FRANK 157

GENERAL WORKS USED IN THIS STUDY 163

INDEX 175 The Legal Realism of Jerome N. Frank

A STUDY OF FACT-SKEPTICISM AND THE

JUDICIAL PROCESS