Jerome Frank

The test of the moral quality of a civilization is its treatment of the weak and powerless.

Jerome New Frank (September 10, 1889 – January 13, 1957) was a legal philosopher who played a leading role in the legal realism movement, and a judge of the United States Court of Appeals for the Second Circuit.

Quotes

• To say I removes a false impression of a Jovian aloofness.
  • Courts on Trial (1950), vii-viii. For much of his career, Frank had avoided use of the personal pronouns "I" and "me", in the belief that saying "the writer" expressed more modesty, but later changed his mind. Bryan A. Garner, A Dictionary of Modern Legal Usage (2001), p. 360.

• The test of the moral quality of a civilization is its treatment of the weak and powerless.
  • United States ex rel. Caminito v. Murphy, 222 F.2d 698, 706 (1955).

• (1) If a convicted man has the money to pay the docket fee and for a transcript of the proceedings at his trial, the upper federal court, by at least reading the transcript, will ascertain whether or not there was reversible error at the trial, or whether or not there was such a lack of evidence that the defendant is entitled to a new trial or a dismissal of the indictment.
  (2) If, however, the defendant is so destitute that he cannot pay the docket fee, and if the trial judge has signed a certificate of 'bad faith,' then although a reading of the transcript shows clear reversible errors, the federal appellate court is powerless to hear the appeal and thus to rectify the errors; and even if the defendant has money enough to pay the docket fee but not enough for a transcript, the upper court usually has no way of determining whether there were such errors, must therefore assume there were none, and must accordingly refuse to consider his appeal. As a consequence, a poor man erroneously convicted-- e.g., where there was insufficient proof of his guilt--must go to prison and stay there. In such a situation-- i.e., where the upper court, if it had the transcript before it, would surely reverse for insufficiency of the evidence or on some other ground, but cannot do so solely because the defendant cannot pay for a transcript-- the result is this: He is punished because he is guilty of the crime of being poor (more or less on the principle, openly avowed in Erewhon only, that one who suffers misfortunes deserves criminal punishment).
  • United States v. Johnson, 238 F.2d 565, 568 (1956) (dissenting).

• True, no man can be wholly apart from his fellows. But, if each of us is a promontory, yet the promontory reaches out beyond the social mainland to a point where others cannot intrude. Beyond that point lies an unexplorable lonesomeness, a unique privacy. It is a no-other-man's land, for others can't penetrate it, can't communicate with it.
  • Judge Learned Hand, reprinted in A Man's Reach: The Philosophy of Judge Jerome Frank (1965), page 49.

Law and the Modern Mind (1930)

• Increasingly constructive doubt is the sign of advancing civilization. We must put question marks along many of our inherited legal dogmas, since they are dangerously out of line with social facts.
  • Page 159.

• Every lawyer of experience comes to know (more or less unconsciously) that in the great majority of cases, the precedents are none too good as bases of prediction. Somehow or other, there are plenty of precedents to go around.
  • Page 163.

• To the somnambulist, sleep-walking may seem more pleasant and less hazardous than wakeful walking, but the latter is the wiser mode of locomotion in the congested traffic of a modern community. It is about time to abandon judicial somnambulism.
  • Page 171.

• Only a very foolish lawyer will dare guess the outcome of a jury trial.
  • Page 186.

About

• One of Judge Jerome Frank's law clerks objected to the length of one of his opinions. He spent all of a week and finally cut it down from sixty-five pages to one-half page. He left both on Judge Frank's desk without comment. The following morning Judge Frank rushed into his clerk's office and shouted, 'Bully for you,' displaying the clerk's work, 'we'll add it to the end'.
  • Reported by law librarian Ed Bander, in "Doing Justice", 72 Law Libr. J. 150 (1979), as having been heard at a speech given at New York University.