Jerome Frank – American Legal Realist – a quick summary

law articles for llm phd students
  • A legal philosopher who played a leading role in the legal realism movement
  • He was made a judge of the United States Court of Appeals in 1941 (prior to that he had worked as a lawyer since 1912) – a graduate of Yale
  • He published many books including Law and the Modern Mind in 1930 in which he argued for ‘legal realism’.
  • In another book, Courts on Trial (1949), he stressed the uncertainties and fallacies in the judicial process

Let’s look at some things he wrote about:

  • He wrote a lot about the judging process and the judge’s personality
  • He said: Judging begins … with a conclusion more or less vaguely formed; a man ordinarily starts with such a conclusion and afterwards tries to find premises which will substantiate it. If he cannot, to his satisfaction, find proper arguments to link up his conclusion with premises he finds acceptable, he will, unless he is arbitrary or mad, reject the conclusion and seek another.
  • The lawyer …assembles the facts in such a fashion that he can work back from this result he desires to some major premise which he thinks the court will be willing to accept.
  • The respectable and traditional descriptions of the judicial judging process admit no such backward-working explanation. In theory, the judge begins with some rule or principle of law as his premise, applies this premise to the facts, and thus arrives at his decision.

My comment:

Frank seems to be saying that in reality judges start their reasoning with the decision they want to make. Then they go back to the rules, laws and principles to find something to justify that decision. He is saying that the old or traditional thinking (where judges start with the rules, principles and laws and work forwards towards a decision) is not true, not realistic:

Working forwards: Rule ⇒ Apply to Facts ⇒ Decision/Conclusion
Working Backwards: Decision/Conclusion ⇒ Go to Rules ⇒ Apply to Facts

  • Frank said: the idea that judges work back from conclusions to principles is so heretical (or
    contrary to accepted belief) that it seldom finds expression (ie no one talks about it)
  • “You study opinions in vain to discover anything remotely resembling a statement of the actual judicial process”
  • The picture traditionally presented to us is this: rules and principles are applied to facts, resulting in a logically reasoned judgment but Frank says that is not the real picture.

What do judges really do (according to Frank)?

Judges’ hunches

  • Good judges, while deciding cases on their intuitive sense of right and wrong, labor to justify that intuition to themselves, and to make it pass muster with their critics (the bench, bar, & public).
  • If the law consists of the decisions of judges, and if those decisions are based on the judge’s hunches (intuition) then the way in which the judge gets his hunches is the key to the judicial process. Whatever produces the judge’s hunches makes the law.

What, then, makes the judges hunches?

  1. Rules and principles of law of course.
  2. But there are others not frequently admitted, revealed, or studied:

– Political prejudices (personal or community)
– Economic prejudices (personal or community), and
– Moral prejudices (personal or community)
– Distinctly personal biases

  • He draws on an analogy with the way that law treats witnesses: He says the books are full of shrewd judicial observations concerning the fallibility of witnesses
  • A witness testifying to things seen, heard, or felt, inevitably makes judgments or inferences from what he has seen, heard, or felt, and without any improper motive color the facts related, and may badly misrepresent the objective facts.
  • Witnesses also have trouble remembering objective facts and distinguishing same from the judgment(s) they remember
  • Witnesses then are not video-cams. They are reporting their judgment of the facts, and may err in making that judgment.
  • What is not often considered, is that judges are also witnesses as they observe the testimony and conduct of the witnesses and counsel, and in a like sense, they may err.
  • The judge, then, must contend not only with the failings of the witnesses, but with his own. We must know the personality of judges


No one can foresee in advance what a judge will believe the “facts” of a case to be.

A lawyer’s opinion as to the law relating to a given set of facts is just a guess about:

– What a judge thereafter will guess were the facts, and
– What that judge will consider to be the proper decision on the basis of the judge’s guess as to the facts
– In doing so, the judge will arrive at his hunches as to the proper disposition of the case without being able to nicely separate his belief as to the “facts” from his conclusion as to the “law.”

  1. The judge’s decision is determined by the judge’s hunch arrived at long after the event on the basis of his reaction to fallible testimony.
  2. It is then fantastic to suppose that men can rely on “established law.” There’s no such thing.
  3. Lawyers always look for motives and biases of clients and witnesses, why the hesitation to do so with judges?
  4. To deny that law consists of rules does not deny the existence of legal rules.
  5. We learn the law by observing the conduct of judges, and legal principles affect that conduct though sometime they only relate remotely to judicial conduct.
  6. One should always ask whether “the rule” is a sufficient explanation for past judicial conduct, or an adequate prediction of future judicial conduct.
  7. Frank says: All judges exercise discretion, individualize abstract rules, and make law. The most dangerous, lawless judges are often those who disguise their acts by meticulous attention to logic.
  8. The best judges operate with the most complete knowledge of the character of his powers, and his own personal prejudices and weaknesses.
  9. It would be wrong to attempt to limit judicial discretion. A judge must always choose and select (facts and law) and to try to prevent a judge from doing so would kill the creativeness which is the life of the law. Justice depends on a creative judiciary
  10. Undeniably, intrusion of judicial prejudices has its evil aspects, but it serves justice to bring these into the light and deal with them, rather than attempt to cover them up
  11. We cannot eliminate “value judgements” by the judge, but we must strive for sensitive, nicely balanced decisions, more subject to his own scrutiny, and more capable of detailed articulation.
  12. Calm consideration shows that judges are not super-human, but subject to normal human frailties.
 Critique: 1) perhaps it is a bit of an extreme perspective, giving too much emphasis to the role of the judge 
2) perhaps it applies more to common law than civil law legal systems 
3) it would be a bit scary if all cases were decided on the “hunch” of the judge – this might undermine our faith in the legal system; we might lose faith that justice is carried out fairly if we accept that everything turns on what the individual judge thinks on a particular day.


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