Frank, Jerome (1889–1957)

Jerome Frank, born in New York, was a key intellectual figure in legal realism as well as a law-trained federal administrator during the New Deal and a judge on the United States Second Circuit Court of Appeals from 1941 until his death of a heart attack in 1957.

He published several books, although his classic work,Law and the Modern Mind (1930), established his credentials as a legal philosopher and realist. Relying on the theories of Jean Piaget (1896–1980) and Sigmund Freud (1856–1939), Frank argued that the basic myth of the modern legal system was that the law could be made stationary and certain, and that this myth rested upon the psychological need for certainty and paternal authority. His other most notable book,Courts on Trial (1949), outlined the real process of trials in the American judicial system and subjected this process to psychological and philosophical critique. In particular, he noted how legal rules shape the process of fact-finding and how lawyers' presentations of trial testimony can play upon the fundamental fallibilities of witnesses, judges, and juries. This skepticism led him to advocate against the death penalty.

Frank taught at Brandeis University, the New School for Social Research, and Yale Law School. His classes incorporated realist criticisms of law and factfinding and introduced a generation of students to sociological jurisprudence.

As a judge, Frank participated actively in the extension of due process rights to the criminally accused and in the rationalization of corporate practice driven by legal realist influence in the 1940s and 1950s. He served briefly on Franklin Roosevelt's Agricultural Adjustment Administration and also served on and headed the Securities and Exchange Commission in the late 1930s through the early 1940s. In 1936, he joined several liberal lawyers to found the National Lawyers Guild (NLG) as a counterweight to the conservatism of the American Bar Association. The NLG, as Frank envisioned it, initially embraced an agenda of advancing civil liberties, minority rights, and collective bargaining, but moved to the left soon after its inception, and [Page 602]Frank left the board in 1940 largely because of his commitment to staunch anticommunism.

While Frank was not a religiously observant Jew, he engaged with other Jewish jurists and intellectuals throughout his life and eventually came to support the establishment of the state of Israel.