- 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 that 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
Working backwards: Decision/Conclusion ⇒ Go to Rules ⇒ Apply to Facts
▪ Frank said that the idea that judges work back from conclusions to principles is so heretical (or contrary to accepted belief) that it seldom finds expression (i.e. nobody talks about it)
▪ “You study opinions in vain to discover anything remotely resembling a statement of the actual judicial process”