46 Pages Posted: 17 Sep 2009 Last revised: 18 Sep 2013
Date Written: August 24, 2009
Jerome Frank occupies an odd place in the intellectual history of American law. He and Karl Llewellyn were long considered the two thought-leaders of probably the most important movement in legal thought of the twentieth century, legal realism. And his most famous contribution to legal theory, Law & the Modern Mind, is still regarded as a legal classic. But at a time of renewed scholarly attention to legal realism, Frank is typically characterized these days as an “extreme” realist, who was a peripheral figure within that movement. He tends to be treated as an erratic, if perhaps brilliant, thinker who made some insightful critiques but who never even attempted to develop anything like a coherent theory of adjudication or a constructive vision for legal reform. This view of Frank seems to me deeply mistaken, and the aim of this essay is to correct it. I do so by offering a close reading of his most famous and controversial work, Law & the Modern Mind. My argument, in short, is that generations of scholars have misinterpreted this book because they have misunderstood Frank’s philosophical worldview and, therefore, his intellectual ambitions. If one takes Law and the Modern Mind on its own terms and if one reads its argument as a whole, rather than simply as a series of one-off critiques, one can see that Frank did not deny the possibility of rational legal decisionmaking, but rather sought to articulate the habits of mind and character on which he believed the sound administration of justice depended. Understanding Frank’s true concerns matters today because the questions he raised remain unanswered, and many of today’s proponents of a “new legal realism” deem them hardly worth asking.
Keywords: legal realism, jurisprudence, Jerome Frank, virtue, character, adjudication, pragmatism, science
Suggested Citation: Suggested Citation
Barzun, Charles L., Jerome Frank and the Modern Mind (August 24, 2009). Virginia Public Law and Legal Theory Research Paper No. 2009-01. Available at SSRN: https://ssrn.com/abstract=1460697 or http://dx.doi.org/10.2139/ssrn.1460697