Jerome Frank Law And The Modern Mind (1889-1957)

law articles for llm phd students

The Judging Process and the Judges Personality

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 … then 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.

Frank compares the results of decisions in Iowa and Georgia where similar results occur on similar facts with dissimilar statutory interpretation, and posits that: The courts in these cases began with the results they desired to accomplish: they wanted to give what they considered to be adequate punishment to drunken drivers: their conclusions determined their reasoning.

  • The conception that judges work back from conclusions to principles is so heretical that it seldom finds expression
  • You study opinions in vain to discover anything remotely resembling a statement of the actual judicial process
  • The picture presented is: rules and principles applied to facts, resulting in a logically reasoned judgment.
  • Therefore, we must study the solutions themselves, not their apologia.
  • Good judges, while deciding cases on their intuitive sense of right and wrong, labor to justify that intuition to himself, and to make it pass muster with his 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, 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?

We generally assume that rules and principles of law are stimuli. But there are others not frequently admitted, revealed, or studied:

  1. Political prejudices (personal or community)
  2. Economic prejudices (personal or community), and
  3. Moral prejudices (personal or community)
  4. Distinctly personal biases
  • 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
  • The Judging Process and the Judges Personality (cont.)
  • 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 a guess as to:

  1. What a judge thereafter will guess were the facts, and
  2. What that judge will consider to be the proper decision on the basis of the judge’s guess as to the facts
  3. 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.”
  4. 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.
  5. It is then fantastic to suppose that men can rely on “established law.”
  6. Lawyers always look for motives and biases of clients and witnesses, why the hesitation to do so with judges?
  7. Mechanistic Law: Rules: Discretion: The Ideal Judge
  8. To deny that law consists of rules does not deny the existence of legal rules.
  9. 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.
  10. One should always ask whether “the rule” is a sufficient explanation for past judicial conduct, or an adequate prediction of future judicial conduct.
  11. 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.
  12. The best judges operate with the most complete knowledge of the character of his powers, and his own personal prejudices and weaknesses.
  13. 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.
  14. Justice depends on a creative judiciary
  15. 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
  16. We cannot eliminate “value judgements” by the judge, but must strive for sensitive, nicely balanced decisions, more subject to his own scrutiny, and more capable of detailed articulation.
  17. Calm consideration shows that judges are not super-human, but subject to normal human frailties.


Law articles for LLM and PhD students:

  1. Getting into a PhD program for law
  2. Tips on how to write a law thesis
  3. Academic proofreading thesis for LLM or a PhD in law
  4. Finishing your PhD thesis or LLM thesis
  5. How to start my Research Proposal
  6. How important is your thesis or dissertation to you?
  7. Proofreading Report help you to improve your writing
  8. Academic proofreading thesis for LLM or a PhD in law
  9. Want to pass or gain distinction?
  10. Achieving the dream of a postgraduate law degree