Humanity and the Law
Courts on Trial: Myth and Reality in American Justice.
By Jerome Frank.
Princeton University Press. 441 pp. $5.00.
When, twenty years ago, Jerome Frank published his Law and the Modern Mind, its author took his place as our leading legal critic—a position from which he has not been dislodged. Friends and enemies alike have constantly had to take note of him and to justify themselves by or against him. His first book is now in its sixth printing; and if it is ever out of print that will be only because it will have been displaced by Courts on Trial, a fuller and more balanced statement of Frank’s views.
When Law and the Modern Mind was published, Frank was a practicing lawyer; since then his career has been greatly enriched by his experiences as counsel for federal agencies, chairman of the Securities and Exchange Commission (SEC), Judge of the United States Circuit Court of Appeals, and author of another book of legal criticism (If Men Were Angels, 1942) and of two books dealing with public affairs and philosophical themes (Save America First, 1938, and Fate and Freedom, 1945). His latest book is, in my judgment, his best, and will confirm and enhance his reputation as scholar, man of humane letters, and legal philosopher and critic.
High public positions have not conventionalized Judge Frank’s spirit; nor have the years slowed his intellectual speed to the point where we could say that his mind, though still powerful, is now tame. As one reads Courts on Trial one feels that the author’s thoughts came faster than he could write them: there is a breathlessness in pace, a tumultuousness in flow that cannot ever be overtaken by verbal expression. Who but Jerome Frank would, in a work of documented scholarship, venture to cite private letters received by the author as well as conversations the author has had with colleagues, or could quote Aristotle, Pascal, Tocqueville, John Stuart Mill, and Mr. Justice Holmes—in a paragraph of nine lines?
Judge Frank’s torrential flow and overflow of ideas and images, analogies and metaphors, citations and quotations, is in part to be explained by his unqualified integrity of purpose and honesty of mind. Having undertaken to speak, he is impelled to say all that he knows and thinks, and to use his words in such a way that nothing will be hidden or kept back—he is anxious to tell the reader exactly what he has in mind. Yet despite or because of the wealth of things he presents to the reader, one feels that Jerome Frank keeps back more than he expresses, only because he cannot write down his thoughts and feelings, with all their fine nuances, fast enough. This quality of Jerome Frank’s mind and style will always puzzle, fascinate, exasperate, and excite readers of his books.
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Integrity of purpose and honesty of mind are also the fundamental standard by which he evaluates American law or courthouse government. In the administration of justice, Frank wants to see theory and practice confirm each other and conform one with the other; he wants image to reflect reality; he wants to see an end brought to all false show, myth, and sham. His position may be symbolized by his recall of the image of the late great Judge Julian Mack, who refused to wear a robe when presiding at trials, and who frequently conducted trials in his private chambers, where he sat at his desk and talked with parties, witnesses, and lawyers as man to man and not as god to man—practices which Frank wants to see followed.
This impulsion to unqualified honesty Frank correctly connects with fundamental premises of democracy, for in a democracy, he says, “the courts belong not to the judges and the lawyers, but to the citizens.” Citizens should, therefore, be able to see the realities of judicial administration by merely looking at them; what appears to the citizen to be the reality should be the reality; and if it is not, then the appearance should be changed until appearance and reality become one.
Courthouse government appears to be impersonal and guided almost exclusively by fixed general laws; it gives the impression of being a science of legal prediction; judges claim to follow judicial precedents, and they claim that they or juries “find” the real facts in cases presented to them. But the reality, says Frank, is quite different. The administration of justice, he says, is full of chance or contingency; it is not a science but an art; the facts of a case are not the facts of the event as it actually happened, but only what the judge or jury thinks happened—the facts of a case are not found but made; legal rights are dependent upon guesses about what the courthouse officials will choose to say are the facts and the rules; individualization of justice is the rule, rather than the exception; rules are molded to fit facts, and they never settle disputes except in the relatively few cases in which the facts or the rules are not disputed.
How would Frank make the appearance reflect the reality? In the first place, he would like to see the public become more intimately acquainted with the events that happen in our courts, especially the trial courts. He would like to see legal education radically changed, so that the student will spend less time on books and observe more of what goes on in law offices and courtrooms. He would like to see judges trained especially for places on the judicial bench, particularly if they will sit in trial courts.
In addition Judge Frank would make some institutional changes. He would abolish the jury, except in major criminal trials. Some things can be done to make it more likely that the facts of a case are brought to the attention of the court, such as making provision for the investigation of cases at public expense, whether the cases be civil or criminal; impartial experts should be called by courts; psychologists should be invited to testify as to the reliability of witnesses. Juries should bring in special (fact-finding) verdicts rather than general (guilty or not guilty, for plaintiff or for defendant) verdicts. The individualization of justice should be practiced openly, and not, as is now being done, surreptitiously. Judges should be required to make special fact-findings. Talking movies of trials might be taken for use on appeals. There should be research in the social effects of legal rules.
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Judge Frank does not claim that these and other reforms would make our administration of justice perfect; he claims only that they would remove some evils and would improve the system generally. Administration of justice will always remain an art and will never achieve the status of a science. Courthouse government is concerned with practical actions of men, and practical activity, as John Dewey says in The Quest for Certainty, “deals with individualized and unique situations which are never exactly duplicable and about which, accordingly, no complete assurance is possible.” But Judge Frank is no legal nihilist. He would not throw out the doctrine of stare decisis (precedent) altogether. Like Dewey, Frank would use the precedents and institutions of the past instrumentally, always subjecting them to intelligent examination and re-examination with an eye on the consequences that follow.
Many of the trial-court reforms suggested by Judge Frank could be instituted by the unilateral action of a courageous, pioneering trial judge—as was done by Julian Mack. A beginning must be made somewhere and by someone. To defer experimentation until we have judges who have been more rigorously trained and disciplined for judgeship means putting Courts on Trial out of sight and mind for generations to come. It is, in a way, a great pity that F. D. Roosevelt thought so well of Jerome Frank that he decided to make him a judge of the Circuit Court of Appeals. He should have estimated him a little higher and given him the “lower post” of a District Court judge. Then Jerome Frank would have had to act at his peril, and Courts on Trial would be the report of a tried experiment, rather than a blueprint for a future that we may never see.
But even if we should not live to see Jerome Frank’s reforms in courthouse government instituted, there is no need to despair. There is always the consolation that though men die, ideas live on—and have consequences.
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