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Jerome New Frank (September 10, 1889 – January 13, 1957) was an American legal philosopher and author who played a leading role in the
legal realism Legal realism is a naturalistic approach to law. It is the view that jurisprudence should emulate the methods of natural science, i.e., rely on empirical evidence. Hypotheses must be tested against observations of the world. Legal realists ...
movement. He was Chairman of the
Securities and Exchange Commission The U.S. Securities and Exchange Commission (SEC) is an independent agency of the United States federal government, created in the aftermath of the Wall Street Crash of 1929. The primary purpose of the SEC is to enforce the law against market ...
, and a United States circuit judge of the
United States Court of Appeals for the Second Circuit The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate ju ...
.


Early life, education, and career

Born in
New York City New York, often called New York City or NYC, is the List of United States cities by population, most populous city in the United States. With a 2020 population of 8,804,190 distributed over , New York City is also the L ...
,
New York New York most commonly refers to: * New York City, the most populous city in the United States, located in the state of New York * New York (state), a state in the northeastern United States New York may also refer to: Film and television * '' ...
, Frank's parents were Herman Frank and Clara New Frank, descendants of mid-19th-century German Jewish immigrants.Yale University Library Guide to the Jerome New Frank Papers - Biographical History
Frank's father, also an attorney, relocated the family to
Chicago (''City in a Garden''); I Will , image_map = , map_caption = Interactive Map of Chicago , coordinates = , coordinates_footnotes = , subdivision_type = List of sovereign states, Count ...
,
Illinois Illinois ( ) is a state in the Midwestern United States. Its largest metropolitan areas include the Chicago metropolitan area, and the Metro East section, of Greater St. Louis. Other smaller metropolitan areas include, Peoria and Rock ...
in 1896, where Frank would attend Hyde Park High School, before receiving his
Bachelor of Philosophy Bachelor of Philosophy (BPhil, BPh, or PhB; la, Baccalaureus Philosophiae or ) is the title of an academic degree that usually involves considerable research, either through a thesis or supervised research projects. Unlike many other bachelor's d ...
degree from the
University of Chicago The University of Chicago (UChicago, Chicago, U of C, or UChi) is a private research university in Chicago, Illinois. Its main campus is located in Chicago's Hyde Park neighborhood. The University of Chicago is consistently ranked among the b ...
in 1909. Frank obtained his
Juris Doctor The Juris Doctor (J.D. or JD), also known as Doctor of Jurisprudence (J.D., JD, D.Jur., or DJur), is a graduate-entry professional degree in law and one of several Doctor of Law degrees. The J.D. is the standard degree obtained to practice l ...
from the
University of Chicago Law School The University of Chicago Law School is the law school of the University of Chicago, a private research university in Chicago, Illinois. It is consistently ranked among the best and most prestigious law schools in the world, and has many dis ...
in 1912, where he had the highest grades in the school's history,History of the Federal Judiciary - The Rosenberg Trial
''
Federal Judicial Center The Federal Judicial Center is the education and research agency of the United States federal courts. It was established by in 1967, at the recommendation of the Judicial Conference of the United States. According to , the main areas of respo ...
''.
despite leaving the program for a year to work as secretary to reformist Chicago alderman
Charles Edward Merriam Charles Edward Merriam Jr. (1874–1953) was an American professor of political science at the University of Chicago, founder of the behavioral approach to political science, a trainer of many graduate students, a prominent intellectual in the P ...
. Frank worked as a
lawyer A lawyer is a person who practices law. The role of a lawyer varies greatly across different legal jurisdictions. A lawyer can be classified as an advocate, attorney, barrister, canon lawyer, civil law notary, counsel, counselor, solicit ...
in private practice in Chicago from 1912 to 1930, specializing in corporate reorganizations, and becoming a partner in the firm in 1919.


Entry into writing and academia

In 1930, after having undergone six months of
psychoanalysis PsychoanalysisFrom Greek: + . is a set of theories and therapeutic techniques"What is psychoanalysis? Of course, one is supposed to answer that it is many things — a theory, a research method, a therapy, a body of knowledge. In what might ...
, Frank published '' Law and the Modern Mind'', which argued against the "basic legal myth" that judges never make law but simply deduce legal conclusions from premises that are clear, certain, and substantially unchanging. Drawing on psychologists such as
Sigmund Freud Sigmund Freud ( , ; born Sigismund Schlomo Freud; 6 May 1856 – 23 September 1939) was an Austrian neurologist and the founder of psychoanalysis, a clinical method for evaluating and treating pathologies explained as originating in conflicts i ...
and
Jean Piaget Jean William Fritz Piaget (, , ; 9 August 1896 – 16 September 1980) was a Swiss psychologist known for his work on child development. Piaget's theory of cognitive development and epistemological view are together called "genetic epistemolo ...
, Frank proposed that judicial decisions were motivated primarily by the influence of psychological factors on the individual judge.Walter E. Volkomer, "Frank, Jerome N.", in Roger K. Newman, ed., ''The Yale Biographical Dictionary of American Law'' (2009), p. 201-202. Like his judicial hero, Justice Oliver Wendell Holmes Jr., Frank urged judges and legal scholars to acknowledge openly the gaps and uncertainties in the law, and to think of law pragmatically as a tool for human betterment. The book "dropped like a bombshell on the legal and academic world", quickly becoming "a jurisprudential bestseller" which "was widely noticed as well as criticized". In 1930, Frank moved to New York City, where he practiced until 1933, also working as a research associate at
Yale Law School Yale Law School (Yale Law or YLS) is the law school of Yale University, a private research university in New Haven, Connecticut. It was established in 1824 and has been ranked as the best law school in the United States by '' U.S. News & World ...
in 1932, where he collaborated with
Karl Llewellyn Karl Nickerson Llewellyn (May 22, 1893 – February 13, 1962) was a prominent American jurisprudential scholar associated with the school of legal realism. ''The Journal of Legal Studies'' has identified Llewellyn as one of the twenty most cited A ...
, and feuded with legal idealist
Roscoe Pound Nathan Roscoe Pound (October 27, 1870 – June 30, 1964) was an American legal scholar and educator. He served as Dean of the University of Nebraska College of Law from 1903 to 1911 and Dean of Harvard Law School from 1916 to 1936. He was a memb ...
. In addition to the philosophical disagreements arising from Frank's realism and Pound's idealism, Pound accused Frank of misattributing quotes to him in ''Law and the Modern Mind'', writing to Llewellyn: Llewellyn defended Frank, but Pound would not relent. This led Frank to produce a lengthy memorandum showing where each quote attributed to Pound by Frank could be found in Pound's writing, and offering to pay Pound to hire someone to verify the citations. Pound would continue to attack Frank's legal philosophy throughout his life, although Frank later moderated his views on legal realism.N. E. H. Hull, ''Roscoe Pound and Karl Llewellyn: Searching for an American Jurisprudence'' (1997), p. 316.


Executive branch service

During the
New Deal The New Deal was a series of programs, public work projects, financial reforms, and regulations enacted by President Franklin D. Roosevelt in the United States between 1933 and 1939. Major federal programs agencies included the Civilian Con ...
administration of
President President most commonly refers to: *President (corporate title) * President (education), a leader of a college or university * President (government title) President may also refer to: Automobiles * Nissan President, a 1966–2010 Japanese ...
Franklin D. Roosevelt, Frank sought the assistance of
Felix Frankfurter Felix Frankfurter (November 15, 1882 – February 22, 1965) was an Austrian-American jurist who served as an Associate Justice of the Supreme Court of the United States from 1939 until 1962, during which period he was a noted advocate of judic ...
to secure a position with the administration. Frank was initially offered the position of solicitor of the
United States Department of Agriculture The United States Department of Agriculture (USDA) is the federal executive department responsible for developing and executing federal laws related to farming, forestry, rural economic development, and food. It aims to meet the needs of comme ...
, but this appointment was blocked by
Postmaster General A Postmaster General, in Anglosphere countries, is the chief executive officer of the postal service of that country, a ministerial office responsible for overseeing all other postmasters. The practice of having a government official responsib ...
James A. Farley James Aloysius Farley (May 30, 1888 – June 9, 1976) was an American politician and Knight of Malta who simultaneously served as chairman of the New York State Democratic Committee, chairman of the Democratic National Committee, and Postmast ...
, who favored another candidate for the job. Frank was then appointed as
general counsel A general counsel, also known as chief counsel or chief legal officer (CLO), is the chief in-house lawyer for a company or a governmental department. In a company, the person holding the position typically reports directly to the CEO, and their ...
of the
Agricultural Adjustment Administration The Agricultural Adjustment Act (AAA) was a United States federal law of the New Deal era designed to boost agricultural prices by reducing surpluses. The government bought livestock for slaughter and paid farmers subsidies not to plant on part o ...
in 1933, and soon became embroiled in an internal struggle with the agency's head, George Peek, who had tried to exercise complete control over the agency. Peek resigned in December 1933, and Frank continued to serve until February 1935, when he was purged along with young leftist lawyers in his office. (Some of these lawyers were members of the
Ware Group The Ware Group was a covert organization of Communist Party USA operatives within the United States government in the 1930s, run first by Harold Ware (1889–1935) and then by Whittaker Chambers (1901–1961) after Ware's accidental death on Augu ...
spy ring run by
Whittaker Chambers Whittaker Chambers (born Jay Vivian Chambers; April 1, 1901 – July 9, 1961) was an American writer-editor, who, after early years as a Workers Party of America, Communist Party member (1925) and Soviet Union, Soviet spy (1932–1938), defe ...
, namely:
Alger Hiss Alger Hiss (November 11, 1904 – November 15, 1996) was an American government official accused in 1948 of having spied for the Soviet Union in the 1930s. Statutes of limitations had expired for espionage, but he was convicted of perjury in co ...
,
Lee Pressman Lee Pressman (July 1, 1906 – November 20, 1969) was a labor attorney and earlier a US government functionary, publicly alleged in 1948 to have been a spy for Soviet intelligence during the mid-1930s (as a member of the Ware Group), following hi ...
,
Nathan Witt Nathan Witt (February 11, 1903 – February 16, 1982), born Nathan Wittowsky, was an American lawyer who is best known as being the Secretary of the National Labor Relations Board (NLRB) from 1937 to 1940. He resigned from the NLRB after his commu ...
, and
John Abt John Jacob Abt (May 1, 1904 – August 10, 1991) was an American lawyer and politician, who spent most of his career as chief counsel to the Communist Party USA (CPUSA) and was a member of the Communist Party and the Soviet spy network "Ware Gro ...
). Roosevelt approved the purge, but made Frank a special counsel to the Reconstruction Finance Association in 1935. Frank returned to private practice in New York from 1936 to 1938, with the firm of Greenbaum, Wolff and Ernst. In 1937, William O. Douglas recommended that Roosevelt appoint Frank to be a commissioner of the
Securities and Exchange Commission The U.S. Securities and Exchange Commission (SEC) is an independent agency of the United States federal government, created in the aftermath of the Wall Street Crash of 1929. The primary purpose of the SEC is to enforce the law against market ...
, which Douglas then chaired. Roosevelt agreed, and Frank served as an SEC commissioner from December 1937 until 1941, and was elevated to Chairman from 1939 to 1941, when Douglas was appointed to the
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
. While serving in the SEC, Frank also served on the
Temporary National Economic Committee The Temporary National Economic Committee (TNEC) was established by a joint resolution of the United States Congress on June 16, 1938 and operated until its defunding on April 3, 1941. The TNEC's function was to study the concentration of economic p ...
. In 1938, Frank also published a book titled ''Save America First'', which had been written during his return to private practice and advocating against American involvement in the stirring conflict in Europe. However, Frank recanted those views after the
attack on Pearl Harbor The attack on Pearl HarborAlso known as the Battle of Pearl Harbor was a surprise military strike by the Imperial Japanese Navy Air Service upon the United States against the naval base at Pearl Harbor in Honolulu, Territory of Hawaii ...
, and Roosevelt forgave Frank's isolationism.


Federal judicial service

Frank was nominated by President Franklin D. Roosevelt on February 13, 1941, to a seat on the
United States Court of Appeals for the Second Circuit The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate ju ...
vacated by Judge
Robert P. Patterson Robert Porter Patterson Sr. (February 12, 1891 – January 22, 1952) was an American judge who served as United States Under Secretary of War, Under Secretary of War under President Franklin D. Roosevelt and US Secretary of War, U.S. Secretary of ...
. He was confirmed by the
United States Senate The United States Senate is the upper chamber of the United States Congress, with the House of Representatives being the lower chamber. Together they compose the national bicameral legislature of the United States. The composition and po ...
on March 20, 1941, and received his commission on March 27, 1941. His service terminated on January 13, 1957, due to his death.


Judicial philosophy

Frank was considered a highly competent judge, often taking what was perceived as the more liberal position on civil liberties issues. In addition to his reputation for expertise on civil liberties matters, he was also considered to be "an outstanding judge in the fields of procedure,
finance Finance is the study and discipline of money, currency and capital assets. It is related to, but not synonymous with economics, the study of production, distribution, and consumption of money, assets, goods and services (the discipline of f ...
, nd
criminal law Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law ...
". For a time, he was sharply and vocally at odds with a colleague on the bench,
Charles Edward Clark Charles Edward Clark (December 9, 1889 – December 13, 1963) was Dean of Yale Law School and a United States circuit judge of the United States Court of Appeals for the Second Circuit. Education and career Born on December 9, 1889, in Woodbrid ...
, "over a whole range of
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
precepts". Frank's scholarly tendency bled over into his judicial opinions, some of which were notoriously lengthy. One anecdote relayed about this aspect of Frank's work tells of a
law clerk A law clerk or a judicial clerk is a person, generally someone who provides direct counsel and assistance to a lawyer or judge by researching issues and drafting legal opinions for cases before the court. Judicial clerks often play significant ...
who had objected to the length of one of Frank's opinions. According to the story:


Julius and Ethel Rosenberg

As a judge, Frank wrote the opinion in February 1952 affirming the convictions of
Julius and Ethel Rosenberg Julius Rosenberg (May 12, 1918 – June 19, 1953) and Ethel Rosenberg (; September 28, 1915 – June 19, 1953) were American citizens who were convicted of spying on behalf of the Soviet Union. The couple were convicted of providing top-secret i ...
, who had been convicted of conspiracy to commit espionage. In reviewing the case as part of a three-judge panel, Frank rejected each of the Rosenbergs' arguments on appeal. Frank denied that the
death penalty Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that ...
imposed on the Rosenbergs was cruel and unusual punishment, but privately he had advised trial judge
Irving Kaufman Irving Robert Kaufman (June 24, 1910 – February 1, 1992) was a United States circuit judge of the United States Court of Appeals for the Second Circuit and a United States District Judge of the United States District Court for the Southern Dis ...
not to sentence the Rosenbergs to death. In his opinion, he also suggested that the Supreme Court might want to revisit the questions about the death penalty for crimes similar to treason. In a related case, however, Frank dissented from his two colleagues by voting to grant a new trial to an accused third conspirator,
Morton Sobell Morton Sobell (April 11, 1917 – December 26, 2018) was an American engineer and Soviet spy during and after World War II; he was charged as part of a conspiracy which included Julius Rosenberg and his wife. Sobell worked on military and gover ...
. The jury, according to Frank, should have been permitted to decide whether Sobell had joined the other conspirators in their plan to send atomic information from Los Alamos to the Soviets, or had merely engaged in a separate, less significant conspiracy with Julius Rosenberg to transmit non-atomic information.


''United States v. Roth''

In ''United States v.
Roth Roth may refer to: Places Germany * Roth (district), in Bavaria, Germany ** Roth, Bavaria, capital of that district ** Roth (electoral district), a federal electoral district * Rhineland-Palatinate, Germany: ** Roth an der Our, in the district ...
'', Frank wrote a concurring opinion to the decision, which affirmed the
obscenity An obscenity is any utterance or act that strongly offends the prevalent morality of the time. It is derived from the Latin ''obscēnus'', ''obscaenus'', "boding ill; disgusting; indecent", of uncertain etymology. Such loaded language can be us ...
conviction of a criminal defendant. In a lengthy appendix to his concurring opinion, Frank "drew on a host of historical, literary, and social science studies to point to the dangers and contradiction of all forms of government censorship of ideas and images". The case was affirmed by the United States Supreme Court the following year, in ''
Roth v. United States ''Roth v. United States'', 354 U.S. 476 (1957), along with its companion case ''Alberts v. California'', was a landmark decision of the Supreme Court of the United States which redefined the Constitutional test for determining what constitutes o ...
'', which noted Frank's approach. The concurrence has been asserted to be one of Frank's most important opinions, and one which set the stage for the direction the Supreme Court would take on such issues beginning in the 1960s.


Continued scholarly writing

Frank's judicial service did not stem his scholarly output. In 1942, he published ''If Men Were Angels'', a defense of the ambitious New Deal programs, and governmental regulation in general, expressing views that he developed while serving in the SEC. In 1945, he published ''Fate and Freedom'', which attacked the theoretical underpinnings of
Marxism Marxism is a Left-wing politics, left-wing to Far-left politics, far-left method of socioeconomic analysis that uses a Materialism, materialist interpretation of historical development, better known as historical materialism, to understand S ...
, denying that societies followed any strict progression and insisting that people were free to mold the development of their own society. Beginning in 1946, Frank also began teaching a regular course on legal fact-finding at
Yale Law School Yale Law School (Yale Law or YLS) is the law school of Yale University, a private research university in New Haven, Connecticut. It was established in 1824 and has been ranked as the best law school in the United States by '' U.S. News & World ...
which "emphasized the parts that human fallibility and partisanship play in the trial court processes". In 1949, he published his most significant work after ''Law and the Modern Mind'', this being ''Courts on Trial'', which stressed the uncertainties and fallibility of the judicial process. In 1951 he moved from New York City to New Haven, Connecticut, preferring to live closer to Yale. His last book, ''Not Guilty'' was written with his daughter, and published following his death. The book concerned specific cases of people who had been wrongfully convicted of crimes.


Personal life and death

Frank married Florence Kiper on July 18, 1914, and they had their only child, daughter Barbara Frank, on April 10, 1917. Florence Frank, herself a poet and playwright, said of her husband: "Being married to Jerome is like being hitched to the tail of a comet". Frank enjoyed
word game Word games (also called word game puzzles or word search games) are spoken, board, or video games often designed to test ability with language or to explore its properties. Word games are generally used as a source of entertainment, but can ...
s,
pun A pun, also known as paronomasia, is a form of word play that exploits multiple meanings of a term, or of similar-sounding words, for an intended humorous or rhetorical effect. These ambiguities can arise from the intentional use of homophoni ...
s, and
charades Charades (, ). is a parlor or party word guessing game. Originally, the game was a dramatic form of literary charades: a single person would act out each syllable of a word or phrase in order, followed by the whole phrase together, while the rest ...
. Frank died on January 13, 1957 of a
heart attack A myocardial infarction (MI), commonly known as a heart attack, occurs when blood flow decreases or stops to the coronary artery of the heart, causing damage to the heart muscle. The most common symptom is chest pain or discomfort which ma ...
in
New Haven New Haven is a city in the U.S. state of Connecticut. It is located on New Haven Harbor on the northern shore of Long Island Sound in New Haven County, Connecticut and is part of the New York City metropolitan area. With a population of 134,023 ...
,
Connecticut Connecticut () is the southernmost state in the New England region of the Northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, New York (state), New York to the west, and Long Island Sound to the ...
.


Legacy

Frank's extensive personal and judicial papers are archived at
Yale University Yale University is a private research university in New Haven, Connecticut. Established in 1701 as the Collegiate School, it is the third-oldest institution of higher education in the United States and among the most prestigious in the w ...
and are mostly open to researchers. Yale Law School's clinical programs are housed in the Jerome N. Frank Legal Services Organization, named in Judge Frank's honor.


Works

Frank had published many influential books, including ''Law and the Modern Mind'' (1930), which argues for ‘legal realism’ and emphasizes the psychological forces at work in legal matters. In 1965, his daughter Barbara Frank Kristein published ''A Man's Reach: The Selected Writings of Judge Jerome Frank,'' with a foreword by William O. Douglas and an introduction by Edmond Cahn of
New York University School of Law New York University School of Law (NYU Law) is the law school of New York University, a private research university in New York City. Established in 1835, it is the oldest law school in New York City and the oldest surviving law school in ...
. At least one legal commentator has written that " w jurisprudential writers have aroused such prolonged public controversy as Jerome Frank".Simon N. Verdun-Jones, ''The Jurisprudence of Jerome N. Frank - A Study in American Legal Realism'', 7 Sydney L. Rev. 180 (1973). *''Law and the Modern Mind'' (Transaction Publishers, 1930), , . *''Save America First'' (New York and London: Harper & Brothers Publishers, 1938) *''If Men Were Angels'' (New York and London: Harper & Brothers Publishers, 1942), ISBN B007T2DFLS *''Fate and Freedom'' (New York: Simon & Schuster, 1945) *''Courts on Trial'' (Princeton, NJ: Princeton University Press, 1949), *''Not Guilty'' (Garden City, N. Y.: Doubleday & Company Inc., 1957)


See also

*
Legal realism Legal realism is a naturalistic approach to law. It is the view that jurisprudence should emulate the methods of natural science, i.e., rely on empirical evidence. Hypotheses must be tested against observations of the world. Legal realists ...
*
List of Jewish American jurists This is a list of notable Jewish American jurists. For other famous Jewish Americans, see Lists of American Jews. Supreme Court of the United States Federal judges Appellate judges * Robert E. Bacharach, Judge of the United States Court of ...


References


Sources and further reading

* * Neil Duxbury 1991: "Jerome Frank and the Legacy of Legal Realism", in ''Journal of Law and Society'', Vol.18, No.2 (Summer 1991), pp. 175–205. * Robert Jerome Glennon, ''The Iconoclast as Reformer: Jerome Frank's Impact on American Law'' (Cornell U. Press, 1985). 252 pp. * Barbara Frank Kristein, ''A Man's Reach: The Philosophy of Judge Jerome Frank'' (1965). * Julius Paul, ''The Legal Realism of Jerome N. Frank: A Study of Fact-Skepticism and the Judicial Process'' (1959). * J. Mitchell Rosenberg, ''Jerome Frank: Jurist and Philosopher'' (1970). * Jordan A. Schwarz, ''The New Dealers: Power politics in the age of Roosevelt'' (Vintage, 2011) pp 177–194
online
* Walter E. Volkomer, ''The Passionate Liberal. The Political and Legal Ideas of Jerome Frank'' (1970).


External links

*
Jerome New Frank papers (MS 222)
Manuscripts and Archives, Yale University Library. * {{DEFAULTSORT:Frank, Jerome 1889 births 1957 deaths American people of German-Jewish descent Franklin D. Roosevelt administration personnel Hyde Park Academy High School alumni Judges of the United States Court of Appeals for the Second Circuit Members of the U.S. Securities and Exchange Commission Lawyers from New York City Writers from New York City United States court of appeals judges appointed by Franklin D. Roosevelt 20th-century American judges University of Chicago alumni University of Chicago Law School alumni