JEROME FRANKA GREAT JURIST WITH CLEAR AND

FRIENDLY EYES1
Bertram F. Willcox*
Jerome Frank was an American judge, teacher, and jurist. His
remarkable insights into the legal process are almost as valuable, I
believe, for India as for his own country. With clear eyes, he saw many
of the law's basic pretensions as shams. With friendly eyes, he saw
most of these shams as unconscious, a kind of latter-day myth or modern
magic.
Many who are gifted with the insights to unmask such myths and
magic (by which men still live) take a malicious pleasure in exercising
their powers. Frank was never one of these. He saw, with sorrow, the
law failing the needs of mankindfailing them tragically. He wrote of
this failure with deep compassion, but not with bitterness. He believed
that a great deal could be done by men to alleviate the law's defects.
Because he saw those defects and thought that others must see them
before the cures could begin, he felt himself driven to expose and to
explain them.
Judge Frank died in 1957. The recent appearance of an anthology
of his writings, edited by his daughter, is a boon of great consequence
to our profession.2 Those who may lack time or inclination to read his
books, articles, and judgments in their entirety will be able to sample
them here. The selection is good. The book has one great defect,
Professor Emeritus, Cornell Law School, Ithaca, New York ; Visiting Professor,
The Indian Law Institute, New Delhi; Consultant in Legal Studies, The Ford
Foundation, New Delhi.
1. I borrow the phrase from Jawaharlal Nehru's first speech as Prime Minister
of India as recounted in Son et Lumiere, Red Fort, Delhi, December, 1965.
2. A Man's ReachThe Philosophy of Judge Jerome Frank (edited by Barbara
Frank Kristein 1965).
There are heart-warming prefatory notes by Justice William O. Douglas of the
United States Supreme Court and the late Professor Edmond Cahn of the New York
University School of Law. These testify to the remarkable human qualities of the
man as well as to his professional4greatness. Mrs. Kristein, the editor, is no stranger
to Judge Frank's writing. She was co-author with him of the last of his books, Not
Guilty (1957), in which, together, they chronicled a score or so of convictions, for
serious criminal offences, of persons who were later proved, by sheer accident, to have
been innocent. This carried forward a work by Professor Borchard, twenty-five years
earlier, who had described sixty-five similar cases in Convicting the Innocent. It is shock
ing to realize that such cases keep on occurring, under all the supposed safeguards of
our criminal law and practice.
I expected to find relief in Mrs. Kristein's omission (mentioned at p. v) "for
reasons of purely personal taste" of most of her father's footnotes. I found, on the
contrary, that I missed them, for they range delightfully over human knowledge and
literature.

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however, for which there is, unfortunately, no cure. It must stop at

page 448. Every young lawyer and jurist who is interested sincerely in
the law and the society it serves, should, in my belief, read Frank in the
original, and read him again and yet again. I say this advisedly, recall
ing his luminous writing with all its clarity, humour, and tenderness;
and its wonderfully refreshing informality. (I do not forget the repeti
tions, the occasionally forced wit, or the stray bit of verbosity.) Although
I can foresee the answer, that there is no time, I believe that every such
jurist should make the time, so that he can understand and absorb Frank
into his basic thinking, into the very fibres of his legal mind and human
heart.
Frank preferred not to call himself a realist; instead he called
himself a skeptic. He was skeptical both about rules and about facts.
H e was also skeptical about a lot of jurisprudence. Consider first:

T H E R U L E - S K E P T I C S W H O D O U B T LAW'S LOGIC AND

LAW'S CERTAINTY

Eighty-five years ago, Oliver Wendell Holmes noted that " The life
of the law has not been logic : it has been experience." 3 He referred
to the " felt necessities of the time," prevailing intuitions, theories, and
even prejudices, as having had more effect on rules of law than had the
syllogism.
T h e myth of the law's logic, which Holmes thus began to demo
lish, was the belief that legal rules, parts of a harmonious and symmetri
cal system, were established by earlier court decisions or predictable
from them. The judge, like a slot machine, produced the decision
which fitted the facts and law that had been fed into his cranial
computer. If the matter were res Integra the nearest precedents pointed
to the only correct answer. Unless an impudent statute intruded itself,
nothing could mar the law's beautifully logical pattern (unless a judge
should make a mistake).
That this was a myth came more and more to be recognized, as
thoughtful and inquiring minds focused on the judicial process. They
observed it chiefly, of course, in the decisions of the appellate courts
where the judgments usually explained what the judges were doing.
A school of good and powerful thinkers developed the discrepan
cies of this myth, until the myth was so shredded, so full of holes, that
little of it was left. Frank was of this school, and one of its most
influential members. But the battle of this school has really been won. 4
Most of us now understand the simple truthwhich the myth obscured
that no prior decision can ever be exactly like any new case. The

3. Holmes, The Common Law 1 (1881).

4. Except for Lord Denning, Master of the Rolls, whom I heard begin a lecture
at the Indian Law Institute by saying that judges do not and must not make law. I
revere Lord Denning as a great judge in spite of this lip-service.

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prior decision persuades. How strongly it persuades is a matter of

degree. (If the differences between it and the new case offer no sub-
stantial reason for distinguishing it, it will usually be followed.) But it
cannot really control. The judge acts as a one-man legislature when he
chooses between the precedents available, weighing not only similarities
and dissimilarities, but also social needs as he sees them. His attitude
towards the human race and the state of his digestion, of course, come
powerfully into play, even though he may not know it. Predictability
and certainty in the law, in the sense of the myths embodied in popular
assumptions, are not attainable.
In his book Law and the Modern Mind'0 Frank tentatively offered a
clue to the expectation of certainty in the law. The expectation may
derive in part from an infantile desire to trust the image of the infallible
father, transmuted in adulthood into the image of the infallible judge.
But the judge is not infallible nor is his decision predictable with
anything like the certainty that the popular myth assumes. Disregarding
for the moment all the uncertainties that will arise out of the finding of
facts, an enormous area of uncertainty lies around the choice of the rule
which is to govern any particular case. Unless a precedent is so close
on its facts, so "on all fours" that there can be no sensible reason for
departing from it, no one can be sure, ahead of time, what rule the
judge will choose to apply. And even if the precedent is "on all fours,"
social considerations may lead our judge to distinguish where he should
not, or to overrule.
Nor docs the existence of a statute change this very much. If a
statute happens to lay down with precision the solution of the specific
case, then it is like the precedent that really controls. But more often
the statute will be susceptible to differing meanings, either because it
was carelessly drawn or because the question that has now arisen was
not foreseen by the makers of the statute. So, again, choice and un-
certainty inhere in what the judge may do.
Holmes wrote that '' The language of judicial decision is mainly
the language of logic. And the logical method and form flatter that
longing for certainty and for repose which is in every human mind. But
certainty generally is illusion, and repose is not the destiny of man." 6
Holmes was also so far ahead of his times that he could proclaim
that general principles do not decide specific cases. (Professor Rudolf
Schlesinger, of the Cornell Law School, has added the perfect commen-
tary, in four words, " No, but they help.") Holmes was able to so out-
rageously flout the pivotal tenet of decisional law because he was not
only devoted to the law and to legal theory but also a profound master
no one greater in his timeof legal rules and principles, and their
patterns and interrelationships and trends. He understood also the
5. 1930.
6. Holmes, " The Path of the Law " (1897), in Jurisprudence in Action 269, 285
(Selected by The Association of The Bar of the City of New York, 1953).

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importance of the power over judges and lawyers, and over society, of
those same general principles that do not decide specific cases. In this
Holmes was perhaps a bit like some great modern painter who flouts the
basic principles of draftsmanship and designbut flouts them not from
ignorance but from mastery. He must know how to draw, how to design,
and how to use colour, before he departs from those rules.
So Frank, too, knew his rules and their uses. He was second to
none in legal fencing, using the authorities as weapons, parry and thrust
with case and statute; distinguishing a case here and demonstrating its
control there; showing that a statute was ambiguous, and why it must
mean what he thought it ought to mean. (I have argued in court
against him. I know.) But all the while he had, I suspect, a back
ground sense that there was in all this some element of shadow boxing.
It was refinement of the very legal rules about whose sanctity he was
skeptical.
In spite of the popular and professional stresses on the need for
stability in law, certainty cannot be had. The lack of it does not do as
much harm as is often supposed. In business and property matters, to
be sure, certainty is highly important. Here indeed the judge hesitates
to change a rule although he believes that it ought to be changed. (If
he does change it, he should try to make his change prospective only.)
But there are other vast areas of law in which no one relies on any legal
rule before he acts. In such areas, like torts, and where social needs
must be predominant, the inherent uncertainties of the rules of law,
instead of being a loss, are an essential gain for society.

T H E FACT-SKEPTICSWHO BELIEVE THAT FACTS ARE

DOUBTFUL GUESSES

If Frank's work had ended in 1930 with Law and the Modern Mind>
it would have been highly significant but perhaps not epoch-making. It
did not end there. In the next two decades he moved on towards con
clusions even more destructive to judicial complacency. He probed
more deeply, I think, into the efficacy of our legal system, and especially
our system of trials, than any one jurist had ever done before.
As Professor Cahn says in his introduction to A Man's Reach,
...Jerome Frank was an outstanding leader among the " legal realists,"...
Yet as soon as they began to make substantial headway and convince the
brighter lawyers that rules were not eternal verities but implements of econo
mic, social, and psychological interests, frank moved away from the others.
He believed that realists like Karl Llewellyn and Felix Cohen were fighting
the battle of the 1920's long after the adversary had left the field and that
their continued preoccupation with rule-skepticism was not only redundant
but actually dangerous. For while theorists kept their eyes glued on the per
mutations of legal rules, no one was doing anything about the law's seriously
defective machinery for finding the facts. As he saw them, his fellow realists
were defaulting in their obligation to shift the campaign from rule-skepticism
to fact-skepticism.

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1965] JEROME FRANK 309

To him, fact-skepticism was a moral faith. When he insisted that judi

cial methods of determining the facts of a past incident were pervasively un
reliable and uncertain, he was always serving two highly constructive purposes :
(a) to reduce the errors and uncertainties as far as procedural reforms could
possibly reduce them; and (b) to warn us against relying on jury verdicts
and other determinations of fact to a greater extent than they deserve. For
example, he warned against relying on them to inflict capital punishment.7
What Frank saw happening in the trial court forced him to try to
explain the weaknesses of this citadel of our legal system. The trial
court is, in most cases, the machinery for finding the facts that consti-
tute the dispute. Its function, therefore, is the very essence of the task
of the law. Regretfully, but all too convincingly, Frank points out the
cracks in the walls of this citadel: the extent to which trials can and
often must go wrong, and the ways in which the trial's blunders are
glossed over by the judicial priesthoodwho proudly tell the layman
that ours is the best legal system the world has ever seen. Reading
Frank leads one to question whether we even have a good legal system !
In considering that system Frank coined a useful phrase, a simple
not an obscureone. To cut away emotional and preconceived
irrelevancies and much beautiful theorizing about law, and to focus
attention on its true and simple function as the part of government
charged with settling disputes, he rechristened it "court-house govern-
ment.' ' He included in this description no gossamer cobweb theories
about the law's nature, but consideration of four simple questions :
(1) what do courts actually do? (2) what are they supposed to do ?
(3) do they do what they are supposed to do ? and (4) ought they to do
what they are supposed to do ? 8 The reader pauses to imagine how
different would be the vast and often exciting literature of jurisprudence,
down the ages, if these four subjects had been substituted in it for "the
law." From Plato and Aristotle to Pound and Kelsen.
Forget for a moment the history and traditions of the so-called
law. Imagine that you must yourself create, out of whole cloth in
some new nation, a branch of government designed to settle disputes
between individuals or groups, by applying one or more of the available
tests of fairness. Remember also, of course, that these governmental
decisions will influence the way people in your new nation will live and
will behave.
First, you will have to devise some way to decide, as certainly as
possible, what actually did occur in any given dispute. Secondly, you
will have to determine the rule, on such facts, for decreeing a fair
settlement. In starting your labours you will naturally devote most of
your attention, and most of your work, to devising some reliable
machinery for the finding of facts. No such machinery can be perfect.
The problem of absolute certainty, as Frank shows again and again, is
7. Op. cit. supra note 2, at xii-xiii.
8. Frank, Courts on Trial 1, 3 (1949).

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inherently insoluble. This is a horrifying and tragic conclusion when you

think of the ruin that is brought down on innocent individuals by trial
courts' finding the wrong facts. These innocent victims are, after all,
some of the beneficiaries for whom democratic governments and their
courts exist and proclaim their promises of justice. This is why your
first duty and your first care must be to make the fact-finding machinery
work as well as possible. After that you will be free to return to the
legal rules, or standards of fairness, to be used in decreeing settlements.
For the all-important facts, never knowable with certainty, the
humble trial court bears the burden and the responsibility. This is a
basic burden and a basic responsibility, of which no restatements, no
codifications, and no wise analyses of legal rules or juristic trends, nor
any sociological jurisprudence or social engineering, can ever relieve it.
" Facts are guesses " 9 and can never be more, at the best, than
guesses that are good. But facts are surely king. If they are wrongly
found, all the other steps in dispute settlement, including even appeals
to a highest court, will be distorted make-believe. No legal writer that I
know of has protested as powerfully as Frank has against the sham
pretensions of the trial courts in their infinitely essential role as the
finders of truth. 10
The pretensions are natural. Jurists (although some of them
glimpse the truth at times) are naturally reluctant as a class to concede
that the king pin of the legal system is untrustworthy. They would
serve society better by facing up to the need for trying to improve it
while conceding of course that it can never be perfect.
There is no mystery, after all, about why it can never be perfect.
As Frank says,
Since the actual facts of a case do not walk into court, but happened out-
side the court-room, and always in the past, the task of the trial court is to
reconstruct the past from what are at best second-hand reports of the facts.11

And again,
We are still usually unable to look into the minds of others, still
frequently stumped when it comes to learning whether witnesses are lying or
innocently mistaken...
Our ancestors faced this problem squarely. They tried to meet itwith
magic. Most of us today do not face it squarely. Most of us look at it obli
quely, meet it with evasions, and, I think, with a sort of sophisticated verba
lized, magicwhich we refuse to recognize as such.

9. Id. at 14-36 passim.

10. In addition to himself, Frank lists Dean Leon Green, Max Radin, Thurman
Arnold, William O. Douglas, "and perhaps" E.M.Morgan as constituting the tiny
band of "fact-skeptics." The rest of the law's skeptics, great though many are, miss
the essential because they are "rule-skeptics" only. Frank, op. cit. supra note 8, at 74.
How about Professor Fred Rodell of the Yale Law School ? How about Kafka in The
Trial ?
11. Frank, op. cit. supra note 8, at 37. (Italics mine.)

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1965] JEROME FRANK 311

In our modern method of trial,...there are two factors which make sub
jectivity unavoidable. The first relates to the witnesses. They do not repro
duce mechanically the events which they saw and heard. Their sight and
hearing are often faulty, and so are their memories. More than that, they
often err in telling their stories in court. So here is one element of subjec
tivity. There is another, which...is less frequently recognized and acknow
ledged : The trial judges or juries are fallible witnesses of the fallible
witnesses....12
And further,
No means...have as yet been discovered, or arc likely to be discovered, for
ascertaining whether or to what extent the belief of the trial judge about the
facts oi a case corresponds to the objective facts as they actually occurred,
when the witnesses disagree, and when some of the oral testimony, taken as
true, will support the judge's conclusion....
In a " contested " law-suit, therefore, with the witnesses in disagreement,
usually no one can adequately criticize the trial judge's fact-finding. If, at
the end of the trial, the trial judge says that Jones hit Smith, or that Mrs.
Moriarity called Mrs. Flannagan a liar, or that old widow Robinson was in
sane when she made her will, or that Wriggle used fraud in inducing Simple
to sign a contractthe judge's word goes. And the same would be true if,
in most of those instances, the trial judge had found exactly the opposite to
be the facts.
Do you see where we have arrived ? We are at last honestly confronting
the problem which drove our ancestors to the ordealsto magic or to
God....Once the so-called " rational " mode of trial is introduced....legal rights
are then dependent on human guesses about the facts of cases. And usually,
in such circumstances, no one can tell what another human being will guess.
Primitive man could say that legal rights were on the knees of the gods.
We must say that they are on the knees of menof the trial judges or the
juries.18

M Y T H AND MAGIC : MODERN MAGIC IN RELATION

TO ORDEALS AND TRIALS

Frank, standing on the shoulders of Holmes and many others,

could see that Holmes's realistic approaches, while they were the truth,
were not by any means the whole truth. Holmes and his followers, for
all their wisdom, had been too generous to "experience" and the "felt
necessities of the time" as the sources of law. They did not see that these
factors, though potent, had their own limitations and their own weak-
nesses. They did not see how much more fallible the judges are than
they had assumed. Frank, armed with much of the thinking of the
modern anthropologist, proclaims and argues that much of the "life of
the law," as Holmes put it, has been neither logic nor experience. It has
been myth and magic, including an unconscious modern magic.
Frank's invocation of myth and magic may at first seem surprising.
We are accustomed to thinking of man as a rational being, especially,
perhaps, in considering the law. The myth that law and logic go hand
12. Id. at 47.
13. Id. at 49-50. I have taken some liberties in the omissions and in combining
sentences. But the meaning is not changed.

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in hand takes a long time to die. But when we stop to think, we know
that thousands of intuitive and subconscious impulses are busier than
reason in determining our lives. Reason rarely controls unless those
other forces pull in opposite directions and are almost balanced. It is
not strange, therefore, that we do have to consider the influence on law
of magic and of myth.
Very briefly, Frank means by "myth" something rather like a per-
verted legal fiction. Legal fictions are a most useful device, so long as
their fictional nature is always kept in mind. A company, for example,
is treated for certain purposes "as if" it'were a single individual rather
than a group of individuals in special relationships. Thinking about
the problems of the company is made easier by this. But the fiction
becomes dangerous when it degenerates into a statement that the com-
pany is equivalent to a single individual for all purposes. The "as if"
is dropped out, forgotten. The jurist's tool has thus become a lie.
Magic is cognate but not the samemagic involves appeals to
supernatural forces or powers. It was a normal and natural part
of life for primitive man. For modern man, supposedly ruled by
reason, it still is a strong motivating factor, but one that he feels he
must hide because it is a little shameful. Thus it becomes disguised,
driven from the conscious mind, and cloaked under pretense.
Thus myths and magic both involve pretenses that things are
different from what they actually are. Both, consciously or uncons-
ciously, involve misstatements and untruths. Both conspire to make
the administration of justice rest on foundations of deception, and so to
justify the layman's distrust of the law.
The complacency of the profession about trials troubled Frank's
conscience more and more. He watched trials from the eminence of
an appellate bench, to be sure; but he had also had earlier experience
with fact finding when he was with the Securities and Exchange Com-
mission.14 It was his conclusions centering on trials, which he had
ripened by two decades of study since Law and the Modern Mind, that led
in 1949 to what was doubtless his greatest book, Courts on Trial.
One of the main themes of Courts on Trial was a speculation that
the same sort of trust in supernatural forces that created the ordeals is
still at work, in modern form, with respect to the trials of today.15
Long before history began, the argument runs, man must have been
plagued and terrified by the unknown, the uncontrollable. When he
could do nothing to help himself out of a danger, he turned to magic to
14. Id. at 251; cf 97.
15. He avoids the charge that he himself presses against most writers on juris
prudencesee belowby advancing this as speculation and no more. Like the
suggestion in Law and the Modern Mind about the judge as a father-image of infallibi
lity, this about modern magic is put forward as an hypothesis, or suggestion, to be
proved or disproved.

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1965] JEROME FRANK 313

stem his fears and soothe his worries.16 This was, according to the
anthropologists, a usual and normal behaviour. Frank relies on
Malinowski for an interesting example of this. Men who used to fish both
in protected lagoons and on the open seas acted differently in those two
places. The lagoons, though hazardous enough, were places where the
men were reasonably able to fend for themselves. They fished in the
lagoons, therefore, in much the way men do today. In the open seas,
on the other hand, all was different. Here mysterious terrors lurked.
The ocean might suddenly become a hostile spirit threatening destruc-
tion. Here there were, then, uncontrollable threats from supernatural
force. The same men fished in the open seas, accordingly, only after
making elaborate ritualistic magic to propitiate the spirits of the deep. 37
The terror of helplessness created unbearable tensions. To resolve
them primitive man turned for solace, and for his answer, to magic or
other supernatural powers.
In law he turned to the ordeals. Charged with an offence he was
helpless before the terror of an unjust conviction. The ordeals, being
operated by magic powers, could not err. Primitive man was quicker,
perhaps, than modern man to realize that the task of finding facts is
an impossibility for mere men. Thus in fear and awe, he turned to the
greater magical powers.
You may wonder why, if these suggestions are correct, the hoaxes
of the ordeals were not unmasked. There are, perhaps, several answers.
The only persons who ever knew that an ordeal had failed were those
whom it wrongly convicted or those whom it wrongly acquitted. The
protests of the wrongly convicted were not believed. The wrongly
acquitted did not tell. Furthermore, the power of magic to continue to
fool people who can see its failures is vast. Again we must bear in mind
how small a part reason plays in men's beliefs. The ancient magic of
the ordeal and the modern magic of the trialin all these matters there
are deep similarities.
Trials by personal combats, supervised and formalized, between
accused and accuser, was one method of deciding the truth or falsity of
the accusation. Divine powers would give victory to him who had told
the truth. There were also many other kinds of ordeal that served the
same purpose.
The Hindu code of Manu, about 300 B.C., provided that, "He
whom the blazing fire burns not, whom the water forces not to come
quickly up, who meets with no speedy misfortune, must be held inno-
cent." 18 Here were examples of the multiform ordeal. Each was a
submission to a binding decision, to be given by a magical power resid-
ing in a thing (mana), or by some other supernatural power. The
16. Frank, op. cit. supra note 8, at 40-79.
17. Id. at 43.
IB. M a t 41.

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accused is to be put into a danger, of a kind approved by such power.

If he comes through it safely, his doing so is a divine or magic signal
that his protestations of innocence were true. If, on the other hand,
his peril engulfs and destroys him, or marks him for destruction, that is
retribution, a signal, also supernatural, that he lied. I n fire, in water,
in poison, in combat, in scales (to see whether the accused has gained
weight), in morsels (that only an innocent person can swallow without
choking), such perils and such tests became slowly elaborated. For
thousands of years they were used and trusted. O n e shudders to think
of the harmless victims hanged, beheaded, stoned, and tortured through
those countless millenia. Frank says that,
Magic is stereotyped, wishful thinking applied to the overcoming of
obstacles....It is born of panic fear, of dread, of the felt need to believe that
what is helpful can be and has been discovered, of driving, insistent, longings. 19
In ancient British law the jury trial, which started with jurors as
witnesses to or against the facts alleged, slowly and painfully replaced
some of the ordeals. This was a m o d e r n innovationtruly a m a d one.
I t was thought to be a crual injustice, too, imposed on Englishmen by
N o r m a n dukes, to force a jury trial on a m a n who did not consent to
waive the surer protection of his ordeal. H o w could mere witnesses be
trusted to tell the truth, without any supernatural power to compel them
to ? T h e oath binding a witness to tell the truth was partly a response
to this challenge, a " late form of the ordeal."' 20 By taking that oath the
witness agreed to accept destruction or torments if he should lie. Even
so, a n accused who could bring together twelve rascals (compurgators) to
swear that he was innocent would at first prevail over the oaths of
hostile witnesses. T h e magical and supernatural elements lingered on.
Nowadays the trial by a judge, or by a judge and jury, has of course
ousted the ordeals. But even non-modern magic dies hard. It is said
that under the ancient custom of decreeing deodand, even in the nine-
teenth century a steam-engine that had killed a m a n in England was
forfeited to the crown " as an accursed thin:." - 1
In the United States, many trials are by juries. T h e jury trial has,
in fact, broad protection in the Federal Constitution and in the consti-
tutions of the states. (These constitutions are harder to amend than
the Constitution in India.)
Frank thought the jury the worst of all modern machineries for
arriving at the truth. M u c h of his writing centres on his criticisms of
jurors, untrained as finders of facts, and peculiarly sensitive to appeals to
their prejudices a n d emotions. H e found the greatest fault with juries
who bring in general verdicts in favour of one party, with no possible
way ever to learn w h a t facts they supposedly found before they applied to

19. Id. at 43-44.

20. Id. at 45.
21. Holmes, op. cit. supra note 3, at 7, 24-26.

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1965] JEROME FRANK 315

those unknown facts the rules given t h e m by the judge. Errors in a

general verdict can hardly ever come to light to be corrected. A n d
there are many other weaknesses about the jury system. But as this
part of Frank's work has little application in India, where jury trials are
now largely unknown, I shall say no more about it.
T h e search continues for an infallible finder of facts. W i t h naive
faith in the potency of scientific miracles we search out such gadgets as
the lie-detector. With trained and skilful operators, a n d with all possible
precautions taken, it may have some value as a make-weight. But it is
not yet reliable enough to justify major relianceespecially when the
danger of convicting innocent persons is borne in mind. 2 ' 2 Computers
may be the next gadget, but men have to feed computers with their
data. W i t h those data computers can remember, correlate, a n d give
results with miraculous speed and accuracy. T h e y may become helpful;
but about the possibility of their arriving at certain truth I a m still
" from Missouri." 23 I confess to profound ignorance, and shall await
proof from the acolytes of the computer.

T H E M Y T H OF A T R I A L ' S R E L I A B I L I T Y

T h e basic facts in dispute in a lawsuit arc things seen, heard, and

felt/24 Each witness is subject to a thousand sources of distortion: dis-
traction, prejudice, forgetfulness, bias, self-importance; and that fatal
penchant for remembering w h a t he has persuaded himself to remember
or what he has been induced to remember. Experiments in crisis-
psychology have shown repeatedly that half a dozen witnesses to a
staged bit of rowdyism will remember half a dozen different experiences.
Each will be s u r e ; quite positive, in fact. In this game, too, each
witness is honest. In the game of life, dishonest witnesses abound. T h e y
are a n immense factor making for uncertainty.
An expert witness who shades his testimony to favour the party who
pays himas most doand who is of course accustomed to the strange
artificial world of the witness box a n d the courtroom, is likely to be a
more persuasive witness than an honest and conscientious person, testi-
fying for the first time and trying to tell the truth. T o such a m a n or
woman the surroundings are unfamilar and upsetting. T o any experi-
enced perjurer, by contrast, the witness box is like a second home. T h e
honest witness fumbles and fumes, especially on cross-examination; small
slips of memory, of no importance in themselves, will become magnified
until he completely loses his head.

22. Frank, op. cit. supra note 8, at 20, 422 ; Burkey, " The Case Against the
Polygraph," 51 A. B. A. J. 855 (1965).
23. An American idiom. A Missouri farmer supposedly does not believe that an
airplane can fly merely because he sees one flying. He wants proof.
24. I do not forget documents. A document can always be questioned. I fit is
not questioned, it is not in dispute.

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This art of cross-examination is a game wherein the search for

truth plays a minimal part. I do not know how it is in India, but in
the United States there are m a n y trial manuals on how to persuade the
trier of the facts. (Aristotle himself wrote such a m a n u a l earlier, de-
scribing the tricks a pleader might use to persuade the Athenian citizen-
judges who decided disputes between citizens. His suggestions fell short
of high-minded devotion to the truth. 2 5 ) Most such manuals have been
written by eminent trial lawyers, or at least by respected ones. Each
a u t h o r unblushingly a n d complacently catalogues the tricks of advocacy;
the ways of making an honest but hostile witness seem untrustworthy ;
the ways of preventing the t r u t h from becoming known. Professor
E. M . M o r g a n of H a r v a r d lamented not only that such trial manuals
are in circulation and well circulated, b u t also t h a t they are considered
quite respectable. I n reviewing one of them he wrote, as Frank quotes
him, " If only a reviewer could assert that this book is a guide not to the
palaces of justice but to the red-light districts of the law. But a decent
respect for the truth compels the admission t h a t [the author] has told
his story truly." 26 T h e law is a game, not a search for truth. W h a t
could be less realistic t h a n to count on the results of trials conducted in
this spirit!
But, as Frank says, trial lawyers are not alone to blame, or even
chiefly to blame. T h e y follow the accepted ways of their honourable
profession. It is the honourable profession that is to blame. It earnestly
professes its aim, to settle disputes justly. And even here Frank recog-
nizes the hold of tradition that makes high-minded men sincerely believe
the professions of their profession, even though in the court room they
act quite differently.
An ordeal was less likely to produce truth and justice than is a trial
under our present system, but a trial under our present system is fright-
eningly likely not to produce truth either. This is the shocking message
of Frank's later writings. I n sum, the central organ of our vaunted
legal systemits very citadelits method of determining the facts it has
to judge, is a frail reed; and there is no way of ever knowing how many
times it fails in its pretense of finding out what has really happened.
If the machinery were perfect it would not be good enough.
Investigation leads the investigator on to more and more knowledge of
w h a t did happen. Soon he comes to feel that this is a situation he
knows ali about. T h e fact, however, is that whereas he learns more
and more about probabilities, he never can arrive at certainty.
M a n ' s efforts down the ages, all the magical means of investigation
he has used, in trials by battle and other ordeals, in examinations and
cross-examinations, and in gadgets such as lie-detectors, 27 lead to the

25. A Man's Reach, op. cit. supra note 2, at 142-44.

26. Frank, op. cit. supra note 8, at 102.
27. See note 22 supra.

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1965] JEROME FRANK 317

same dead-end w a l l : beyond probability one can never get. Incontro-

vertible knowledge of what has actually happened is a will-o-the-wisp
that neither the trial judge, nor any other investigator who was not
present at the happenings, can ever grasp.
It is easy to d a m n detective fiction. M a n y complaints about it are
doubtless sound. But it does have one compensating virtue. It describes,
over and over again, situations where conclusive evidence of fact x, when
correctly explained by other evidence, turns out to be evidence not of x
but of y.
Professor Wigmore, famous for his works on evidence, devoted a
book of more than a thousand pages, Principles of Judicial Proof, to a
search for scientific techniques for evaluating and determining " the net
persuasive effect of a mixed mass of evidence." By using such techni-
ques he hoped to be able to arrive at truth. But in the end he confessed
his failure ! - 8 Yet the popular myth goes on, that a trial can be counted
on to ascertain which of the disputing parties has told the truth.

T H E M Y T H OF AN A P P E A L ' S R E L I A B I L I T Y

T h e popular faith in our system is betrayed by a second myth too.

This is the belief that if, in a n unusual case, the trial court should go so
far astray as to make an erroneous determination of the facts, the error
could and would be corrected on appeal. This popular confidence is
misplaced, for several reasons. T h e case may never be appealed; appeals
cost money, and the client may have no more to adventure. If the case
is appealed, furthermore, the appellate court will not look into the record
to try to decide whether the trial judge, or other trier of facts, m a d e
correct decision on what the true facts were. It will look only at
whether the trier of fact could have arrived at the result he did without
being arbitrary or unreasonable. Except in equity cases (which Frank
rather strangely fails to mention in this connection) the upper court is
bound by facts reasonably found by the court below. Although the
higher court may believe that it would have found the facts differently
if it had conducted the trial, it may not legally reverse if there was any
evidence to support the finding.
T h e chance that error of fact below will be corrected above is
further lessened by another myth. This one is the popular belief, en-
dorsed by most appellate judges, t h a t the trial court is the best judge of
the truthfulness of witnesses because it heard, and saw, them testify.
This myth has some truth woven into its fabric. But it is hardly the
obvious truth it purports to be. T h e r e is a story Frank tells, of a retired
federal judge who had presided over trials for many years. After he
retired, he publicly revealed for the first time that he h a d always used
a personal and conclusive test of the truthfulness of a witness. Any

28. Frank, op. cit. supra note 8, at 49.

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witness who rubbed his hands while testifying was sure to be lying. 29
O n e thinks with remorse and horror of the decisions down all those
years based on that silly assumptiondecisions that could never be
reversed by a higher court because the trial judge had heard and seen
the witnesses with his own ears and eyes.
I n India, of course, the procedures on appeal are different. O n a
first appeal questions of fact can be reviewed more adequately, I be-
lieve, t h a n in an appeal from a common-law judgment in the United
States or England. But even here, Frank's emphasis on the limited
scope of an appeal is still a sobering truth. In m a n y situations, such as
second appeal to a H i g h court, or any appeal to the Supreme Court of
India, review will not normally include a reassessment of the findings
of fact.
SKEPTICISM ABOUT JURISPRUDENCE

Frank did not explicity call himself a jurisprudence-skeptic as he

called himself a rule-skeptic and a fact-skeptic. But his doubts about
most jurisprudence, or legal philosophy, were profound. Perhaps this
was a part of his rule-skepticism. I may depart somewhat from Frank
in w h a t follows, to put down some suggestions which have long been
troubling my mind. If so I a m confident that these ideas will not
depart widely from his.
T h e literature of law and jurisprudence impressed Frank as use-
lessly abstract, impossible to prove or to disprove. T h a t it was the work
of profound thinkers and excellent writers, and that it contained many
fascinating speculations, did not make up for what he thought to be
its remoteness from reality.
As we have seen, the emphasis in legal philosophy has been on
rules rather than on facts, with little down-to-earth investigation of
what legal systems do to people. It has usually assumed that to dis-
cover the existence and ali the effects, of a rule of law, is the end of the
matter. This was natural, because sociological research into actualities
is recent and still very difficult. In India it may still be imprac-
ticable. 3 0
For thousands of years the law has been a subject of abstract, not
to say mystical, speculation. Wise m e n have discussed it as though it
were a thing in itselfa sort of discoverable essencelike one of Plato's
ideas. T h e law becomes almost that "brooding omnipresence in the
skies" that Holmes said it was not. And these legal philosophers are at
it still. T h e y describe the nature and the sources of law as these have
been revealed to them.

29. Id. at 335.

30. See G. S. Sharma, " Horizons of Indian Legal Philosophy, " in Essays in
Indian Jurisprudence 9 (Sharma ed. 1964). But Dr. Sharma's administration of The
Indian Law Institute is initiating field studies of people's attitudes toward law which
promise to yield new and realistic information of great value.

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1965] JEROME FRANK 319

T h e law can usefully b e divided, I suggest, into abstract law a n d

concrete law. Concrete law is not so m u c h principles or rules, from
whatever source and of whatever nature, as it is rules applied to facts.
So long as a rule remains a mere rule it is a n abstraction in the minds
of men, like faith, or hope, or charity. As a n abstraction it may have
enormous influences, on jurists and on society. But it is not until it
impinges on facts found, and meshes with them, that it becomes a con-
crete phenomenon. T h e facts found to which the rule is applied give
it its life. These facts are real, whether correctly found or not, because
the parties to the dispute may be bound by them. (Contrast, for
example, a moot-court case argued in law school on assumed facts;
here the facts and the rules are all abstractionsinteresting abstrac-
tions, to be sure, but abstractions which have no concrete impact on
people's lives.)
O n e quotation from Courts on Trial will illustrate the rational basis
for Frank's distrust of the pretensions of jurisprudence. After recalling
a protest, m a d e many centuries ago by Galileo in a letter to Kepler,
against the pertinacious refusal of the greatest philosopher at P a d u a to
look at the moon and the planets "through my glass," Frank says,
Philosophers today do look through telescopes at the moon and planets.
Most of our eminent legal philosophers and teachers, however, still use logical
arguments as magical incantations to exorcise unpleasant legal realities, in-
stead of using their eyes to see what happens in trial courts.
They recall Marlowe's lines :
" Nothing so sweet as magic is to him,
Which he prefers before his chiefest bliss :
And this the man that in his study sits.*' 'Al
But a word of caution. Frank disagrees with legal philosophers
because they use their generalizations "to exorcise unpleasant legal reali-
ties, instead of using their eyes." H e does not disagree with them
because they generalize. Generalization is an indispensable tool for the
growth of thought. O u t of observation a provisional generalization
arises; so it becomes a n hypothesis. It needs to be tested by more
and more observation. Until so tested and proved (subject always, like
Newton's laws, to further correction) it cannot safely be used as depend-
able truth, to be relied upon.
T h e leaders of the schools of jurisprudence have put forward their
speculation as ultimate truth. In most cases this speculation, often
provocative and brilliantly presented, has mainly dealt, as already noted,
with the substantive rules of law, and their nature. But inasmuch as
there is usually no practicable way, as there usually would be sooner or
later in the natural sciences, to test these speculative conclusions by
refined observation, the legal philosophers have not tried to test them.
So they jumped to the step of asserting them as truth. Some are correct, no

31. Frank, op. cit. supra note 8, at 71-72.

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d o u b t , a n d some a r e doubtless incorrect; b u t we lack, a n d m a y forever

lack, techniques for testing t h e m .
T h e conclusions of t h e greatest of the legal philosophers are so
persuasive, a n d are fashioned a n d written with such elegance, t h a t each
of us is in peril of being captivated by one or a n o t h e r of them. 3 2 H e thus
becomes a prisoner to one untested generalization or another, which will
deeply a n d vitally affect his work throughout his life. If t h e conclusions
in question are one-sided or lacking in perspective, he m a y never shake
himself free of t h e m . A n d even if t h e conclusions are correct, they still
are v u l n e r a b l e because they emphasize rules a n d skip over the all-
i m p o r t a n t facts.

IN W H A T W A Y S FRANK W A N T E D THINGS M A D E BETTER

By criticism, a n d study, a n d work, ways to ameliorate this cruelly

unjust system m a y be found. F r a n k was not at h e a r t destructive. He
summarizes his constructive proposals, tentatively, as follows : 3 3
Endeavoring honestly to describe the actualities of court-house activities, I
have criticized some of them, and have proposed some reforms. For the
reader's convenience, I here list some of those suggested reforms :
1. Reduce the excesses of the present fighting method of conducting
trials:
(a) Have the government accept more responsibility for seeing that all
practically available, important, evidence is introduced at a trial of a civil suit.
(b) Have trial judges play a more active part in examining witnesses.
(c) Require court-room examination of witnesses to be more humane
and intelligent.
(d) Use non-partisan "testimonial experts," called by the judge, to
testify concerning the detectible fallibilities of witnesses ; circumspectly
employ " lie-detectors."
(e) Discard most of the exclusionary evidence rules.
(f) Provide liberal pre-trial " discovery " for defendants in criminal
cases.
2. Reform legal education by moving it far closer to court-house and
law-office actualities, largely through the use of the apprentice method of
teaching.
3. Provide and require special education for future trial judges, such
education to include intensive psychological self-exploration by each prospec-
tive trial judge.
4. Provide and require special education for future prosecutors which,
among other things, will emphasize the obligation of a prosecutor to obtain
and to bring out all important evidence, including that which favors the
accused.

32. T h e reader may reflect that I am hardly in a position to complain, because I

myself have been so frankly captivated by Frank. That I have been is true. Neverthe-
less, I plead not guilty. Nobody was more ready than Frank to recognize that his
opinions were tentative and subject to correction. One can be his disciple without
commitment to any dogma.
33. Frank, op. cit. supra note 8, at 422-23.

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1965] JEROME FRANK 321

5. Provide and require special education for the police so that they will
be unwilling to use the " third degree."
6. Have judges abandon their official robes, conduct trials less for-
mally, and in general give up " robe-ism."
7. Require trial judges in all cases to publish special findings of
fact.
8. Abandon jury trials except in major criminal cases.
9. At any rate, while we have the jury system, overhaul i t :
(a) Require fact-verdicts (special verdicts) in all jury trials.
(b) Use informed "special" juries.
(c) Educate men in the schools for jury service.
10. Encourage the openly disclosed individualization of law suits by trial
judges ; to that end, revise most of the legal rules so that they avowedly grant
such individualizing power to trial judges, instead of achieving individualiza-
tion surreptitiously as we now largely do.
11. Reduce the formality of appeals by permitting the trial judge to sit
with the upper court on an appeal from his decision, but without a vote.
12. Have talking movies of trials.
13. Teach the non-lawyers to recognize that trial courts have more im-
portance than upper courts.

I set forth this provocative list in full. M a n y of the items will

show Frank's broad a n d imaginative range. T h e y will also show how
few of his ideas I have been able to d o justice to, or even to mention, in
this article; he wrote on a t h o u s a n d aspects of law, government, history,
a n d philosophy.
J U D G E FRANK'S S T Y L E

Frank's style as a j u d g e maddened his orthodox colleagues. (I

do not m e a n his conservative ones.) T h e judicial priesthood, however
hospitable some of t h e m may be to new ideas, a n d however sensitive to
the need for change in the abstract, h a v e a n emotional c o m m i t m e n t to
the fitness of things. Fitness, for t h e m , comprehends the form and
style of austere court j u d g m e n t s . F r a n k affronted this emotional com-
mitment. By long discursive essays, by colloquial phrases, by multitudes
of rambling but fascinating footnotes, by excursions into fields quite
alien to t h a t of law in a n a r r o w sense, by analogies no one else could
34
have thought of, he continually outraged his b r e t h e r n ' s susceptibilities
even while he enriched a n d b r o a d e n e d t h e meanings of his subject.
He never r a m b l e d for the sake of rambling. W h e n he seemed to d o so,
it was to w a n d e r into the remotely relevant, and never into t h e

34. One colleague sitting on the same court with Frank is said to have answered
a critic who asked him to do something to curb Frank's judicial extravagance, " I f
another judge on my court wants to show his underclothes in public, what can I do to
stop it ?" (The language has been refined for publication.) Frank's style, informal,
discursive, and sometimes affected, also maddens one esoteric professor of law; he
pontificates, "it is not the way to do legal philosophy." Hughes, "Book Review,"
40 NT.U.L. Rev. 1007, 1008 (1965).

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irrelevant. Nor do I think he repeated for the sake of repeating. He

explains in the preface of Courts on Trial,
Since my position in this book is somewhat novel, I have deliberately
used a technique which, as I said in the preface to an earlier book, is reminis-
cent of the following : Mr. Smith of Denver was introduced to Mr. Jones at
a dinner party in Chicago. " O h , " said Jones, " do you know my friend, Mr.
Schnicklefritz, who lives in D e n v e r ? " " No," answered Smith. Later in the
evening, when Smith referred to Denver, Jones again asked whether Smith
was acquainted 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." ;J5

Frank's reading in every field of h u m a n knowledge was rapid and

omniverous, and evidently he never forgot anything he read. If his
judgments were discursive, his quotations and the footnotes that
enshrined those quotations, were sometimes almost unbearable. His
own insights were so keen that his reader wonders at times whether the
vast array of support which he marshals is not superfluous, especially
when his own way of putting some iconoclastic proposal is often far
better than anything in his laboured collection of quotations.
T h e answer, as in part suggested by Professor Cahn's introduction
to A Man's Reach,iC) was neither Frank's modesty, nor his arrogance. It
was his recognition that what he must say, by way of frontal attack on the
efficacy of trialssanctum sanctorum of our systemwould be so shocking
that he d a r d not rest content with his own reasoning, but must show
that, on this detail or that, the opinions of other observersand respect-
ed onesagreed with his. H e was a good enough lay psychologist to
realize that his readers might too easily come to think of him as a
" crack-pot," and so might be more impressed by the views of recog-
nized experts like Wigmore, Morgan, Taft, and others whose devia-
tions from orthodoxy, though as radical in detail, were far less sweeping
in their conclusions. Because none of those had built their deviations
into a broad attack upon the system, they had not lost respectability.
Readers building u p an immunity to Frank might therefore be impressed
by the writers w h o m he quoted.
Not all judgments should be written as Frank wrote them. T h e
tasks-already crushingof the court reporter, the digester, and the
annotator would become unmanageable. But this does not prove that
Frank should not have written judgments as he did. Not all judges are,
or should be, J e r o m e Franks. H e was uniquea critic without rancour;
a reformer without fanaticism. So rare and fair a prophet need not be
b o u n d by all the conventions that are good enough for most of us.
Frank could never be popular with the high priests of the law who
gather at their b a r association meetings. He could not say the noble,
dishonest things about the glories of our systema system perfected by
the mind of m a n under the guidance of God. H e had to say what the

35. Frank, op. cit. supra note 8, at viii.

36. Op. cit. supra note 2, at xiv-xv.
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1965] JEROME FRANK 323

honest skeptic must say w h e n he has the courage to look at court-house

government with eyes that are friendly but absolutely clearthat it is a
creaking and groaning machine, laden with cruel and stubborn injus-
tices, covered with panels of tarnished tinsel proclaiming its perfection :
The law is the true embodiment
Of everything that's excellent;
It has no kind of fault nor flaw
And I, my Lords, embody the law.
T h e encomium of the Lord Chancellor in Gilbert and Sullivan's
Iolanthe was only a little exaggerated for the law men of Great Britain
of that day. And the popular figures, in law meetings even today, are
those who do not see, or those who, seeing, bow to what is expected.
Frank was not one of those.

Q U A L I T A T I V E OBSERVATION AND Q U A N T I T A T I V E R E S E A R C H

Jerome Frank also stands, unproclaimcd but in my mind at least, as

a champion for another crucial aspect of h u m a n thought (and in these
days h u m a n thought is the only hope for the survival of life on earth.)
I refer to his silent refutation of the idea, powerful in these days, that
all advances in knowledge and thought must necessarily be won by
quantitative research. I have friends, whom I greatly admire in all other
ways, who scoff at anything less as mere speculationmind-wander-
ing, as it were, over observable phenomena. Thoughts arc not worth
pursuing, for these persuasive people, unless they can be pegged down
with statistics. W h e n I am troubled by these ideas, I turn with
relief to the life of Jerome Frank. He could not quantify his subject.
T h e central problem is singularly resistant to quantitative analysis.
No scientific gadget, no scientific techniques, no questionnaires, no com-
puters, can give us even a toe-hold, as we have seen, on an attempt to
know when trial machinery makes mistakes and when it does not. O r
to know the answers to the multitude of similar questions with which
Frank wrestled. T h e success which, in my opinion, he attained shows
how much knowledge and vyisdom can be gained by observation, free
from prejudice and preconception, and careful tentative thinking based
thereon. O t h e r observers m a y show that in this or that respect Frank
was wrong. I a m not aware t h a t any has done so, but the field is open;
and further light will be welcome. It will enhance, not lessen, our debt
to Jerome Frank.
A PASSION FOR JUSTICE

I shall end this sketch by quoting a paragraph from J u d g e Frank's

dissent in United States v. Johnson21 because it illustrates so well the
passion for justice for t n > underdog which infused his judicial work
and his writings. T h e i^sue was whether refusal by the trial judge to

37. 238 F. 2d 565 (1956}) reviewed by Supreme Court and vacated 352 U. S. 565
(1957), as reported in A Mar^s Reach, note 2, supra, at 440, 436, 442.

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certify to the good faith of an application to appeal in forma pauperis

could be reviewed by Frank's appellate court. He said,
Surely, even if but one out of a hundred attempted appeals by indigents
has merit, justice compels the conclusion that that appeal shall be heard. It
is no answer that so many appeals will result as to " crowd the docket." If
so, more judges should be appointed. True, the cost of running the govern
ment will somewhat increase. But I, for one, cannot sleep well if I think
that, due to any judicial decisions in which I join, innocent destitute men
maybe behind bars solely because it will cost the government something to
have their appeals considered.

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