B004E3WO62 EBOK

by Morton J. Horwitz

  Above all, I believe, Llewellyn meant to deliver an attack on Pound's abandonment of any commitment to reform. Pound's attachment to the law in books, Llewellyn wrote, was "central to his thinking about law" and showed "a tendency toward idealization of some portion of the status quo at any given time." He was "a man partially caught in the traditional precept-thinking of an age that is passing. . . ."ss

  What was the basis for Llewellyn's belief that Pound tended "toward idealization . . . of the status quo"? Llewellyn must have heard academic gossip about the growing rift between Frankfurter and Pound over the Harvard faculty appointments of Nathan Margold and James Landis. 36 The Pound-Frankfurter rift appears to have begun in 1927 when the Italian-American anarchists Sacco and Vanzetti were executed after a commission headed by Harvard President A. Lawrence Lowell whitewashed the accusations of unfairness prominently expressed by Frankfurter, among others. 37 While Pound privately thought that Sacco and Vanzetti had been unfairly convicted, "his refusal to speak out against what many regarded as a new nadir in American law" contributed, his biographer tells us, to a growing sense that Pound had lost his commitment to reform. In the controversial faculty appointments that followed, Pound was regarded as doing Lowell's bidding, and "nothing created more bitterness than Pound's uncharacteristic timidity in response to President Lowell's periodic acts of anti-Semitism.,, 38

  By 1928, after Sacco and Vanzetti had been executed, Llewellyn accepted an invitation to join the council of the recently formed Sacco and Vanzetti National League, which was devoted to establishing their innocence and to working for reforms in the criminal justice system.39 It is reasonable to suppose that Pound's silence affected Llewellyn's determination to characterize him as "a man partially caught in the traditional precept-thinking of an age that is passing" and one who showed "a tendency toward idealization of some portion of the status quo."

  It is at this point that Llewellyn strangely declined: "I have no wish to argue the point. It will appeal, or it will not, and argument will be of little service." His point, I surmise, is that while it was still impossible on the public record to show that Pound had changed, those who understood the significance of his failure to take a stand on Sacco-Vanzetti, as well as of his subsequent role in Harvard Law School politics, would realize that Pound had become a conservative. And now the task was to explain why the leader of the pre-war Progressive movement for legal reform had abandoned the cause.

  Llewellyn's article, standing alone, was probably not enough to provoke Pound's reply. The final straw was the publication in the same year of Jerome Frank's radioactive Law and the Modern Mind (1930) and of a symposium on the book, apparently organized by Llewellyn, in the Columbia Law Review of January 1931 two months before Pound's reply appeared.40

  Law and the Modem Mind was published at a pivotal moment in the formation of the Legal Realist movement. If Llewellyn had coined the term "Realism" only a few months before, Jerome Frank needs to be credited with first using the name "Legal Realism" in his book. It was through the collaboration between Llewellyn and Frank that a decision to proclaim the arrival of a new movement in legal thought crystallized, even as some of the named members of the movement refused to be drawn into any collective self-identification. 4l

  Law and the Modern Mind produced a flurry of furious criticism and was undoubtedly the precipitating event in Pound's decision to criticize Realism. For a long time thereafter it remained the most popular and widely read piece of Realist literature'42 especially because its accessible and provocative style made legal controversy comprehensible to a lay public. Within professional and academic circles, however, it quickly led to the marginalization-and perhaps even the blackballing-of Frank, and it became a favorite vehicle for discrediting the Legal Realist movement.43 For years, the only notion that many educated people associated with Realism was that it asserted that a judge's decision could be traced to what he ate for breakfast.

  In truth, Law and the Modern Mind is a brilliant book that, after more than a half century, still manages to communicate the irreverent excitement of one brand of Realism. While its bold and simplistic psychoanalytic strokes are what made it famous-and infamous-its criticisms of formalism-what Frank aptly called "legal fundamentalism"-remain a much better summary of the accumulated intellectual assaults on the old order than any of Llewellyn's simultaneously ponderous renditions. But Frank clearly went too far in the judgment of his more respectable contemporaries, and he became, at age forty one, the enfant terrible of the movement, not without some clear satisfaction to his own exhibitionist tendencies. 44

  "A precocious child," his biographer informs us, Frank at age twenty-three had graduated with the highest grades ever achieved at the University of Chicago Law School.45 "Although he had become a lawyer at his father's insistence, he still dreamed of writing fiction." He later remembered an unfinished novel as "a neurotic effort."46 "The perennial bags under his eyes," which gave "him a burnedout appearance, came from mental rather than physical over-indulgence."47

  The future judge of the Second Circuit Court of Appeals, widely regarded as the most impressive bench of federal judges in America, began writing Law and the Modern Mind in the midst of his own psychoanalysis. He had begun seeing a New York psychiatrist who had already been treating Frank's daughter for intermittent psychosomatic paralysis of the legs.

  Frank took such a liking to Dr. Glueck that he considered undergoing analysis himself, but insisted on reducing the doctor's usual term of treatment from a year to six months. Dr. Glueck told him that a shorter period would be quite impossible, but Frank persevered, suggesting that they meet twice a day. Dr. Glueck reluctantly agreed and the hurried sessions began.48

  Law and the Modern Mind reads like the work of a recent convert, notwithstanding Frank's repeated insistence that he was offering only "a partial explanation."49 Its dramatic and simple vision is proclaimed as if the writer is offering a blinding new truth to a humanity in darkness. Yet, his main message continues to be filled with insight.

  '[hat religion shows the effects of the childish desire to recapture a father-controlled world has been often observed. But the effect on the law of this childish desire has escaped attention. And yet it is obvious enough: To the child the father is the Infallible Judge, the Maker of definite rules of conduct. He knows precisely what is right and what is wrong and, as head of the family, sits in judgment and punishes misdeeds. The Law-a body of rules apparently devised for infallibly determining what is right and what is wrong and for deciding who should be punished for misdeeds-inevitably becomes a partial substitute for the Father-as-Infallible-Judge. That is, the desire persists in grown men to recapture, through a rediscovery of a father, a childish, completely controllable universe, and that desire seeks satisfaction in a partial, unconscious, anthropomorphizing of Law, in ascribing to the Law some of the characteristics of the child's Father-Judge. That childish longing is an important element in the explanation of the absurdly unrealistic notion that law is, or can be made, entirely certain and definitely predictable. so

  There were several intertwined messages in Frank's book. First, to appropriate terms from the future, Frank was offering what one might call a "modernist" or "existentialist" message. The insistence on the uncertainty and indeterminancy of law involved not only many internal technical challenges to claims of the nondiscretionary and self-executing character of legal reasoning. The book also mockingly questioned one of the few remaining sources of objectivity or certainty in a post-religious age. Frank shrewdly understood the fear of a standardless universe that religious and legal fundamentalism shared. Indeed, he suggested that law had come to replace religion as the main focus of the yearning for certainty.

  Among American legal thinkers only Holmes perhaps qualified in this sense as an existentialist. "[C]ertainty generally is illusion, and repose is not the destiny of man," he proclaimed more than once. 51 Many of these themes were also prominent in the career of Holmes's contemporary, the philosopher Wil
liam James, as Frank noted. He recounted James's youthful terrors at "the insecurity of life," his near mental breakdown, and his sudden "cure." 52 "And the cure," Frank wrote, consisted in a "sudden shift from panic fear of insecurity to a deep enthusiastic bliss in the absence of security [that] marked for James the advent of emotional adulthood."" But existential doubt has never been welcome within the oracular culture of American legal discourse. Jeremiads against subjectivity have constituted a recurrent theme in the literature of the law.

  Jerome Frank's challenge not only to the possibility but even the desirability of legal certainty was received by the legal profession with as much enthusiasm as Darwinism had been greeted by Protestan' ministers seventy years earlier. 54 The legal profession also has had its abundance of William Jennings Bryans ready to insist, as in the Scopes trial, that any departure from fundamentalism meant that everything would he set adrift. 55

  If Frank's existentialism ran against the grain of American legal culture, his irreverence was virtually unique. None of his contemporaries except perhaps Llewellyn and Thurman Arnold" would have dared to mockingly label legal fundamentalism "Realism" (in contrast to Realism), after the esteemed Harvard formalist Joseph Beale.57 While Frank was condemned for his bad manners in making an ad hominem argument, the real point was that he was engaged in a form of cultural politics against an earnestly serious and intensely rationalistic legal culture. Frank's irreverence was everywhere experienced as being in bad taste, which is precisely why it seems so alive to us today.

  But Frank's irreverence was experienced as outright rebelliousness because of its challenge to rationalism itself. Before Frank, there is no other important book by an American lawyer on legal theory that deals so derisively with the legal profession. And, like Llewellyn, Frank felt called upon to devote a special chapter to attacking Dean Pound.

  But all of these forms of irreverence paled before the psychological claims that made the book so arresting and ultimately so infuriating. There is "The Basic Legal Myth" S8 that law is certain. This is "deceptive" as well as undesirable. "Why do men crave an undesirable and indeed unrealizable permanence and fixity in law?"" Does the legal profession engage in "professional hypocrisy" 60 when "the generality of lawyers insist that law should and can be clearly knowable and precisely predictable although, by doing so, they justify a popular belief in an absurd standard of legal exactness 61 When they "fail to recognize fully the essentially plastic and mutable character of law," lawyers "are not consciously deceptive." Rather, they are attempting to fulfill "childish longings" for "a father controlled world. 1162

  Of all Frank's impieties, perhaps the greatest was his survey of "Certain Brilliant Legal Thinkers"63 to determine how legally "adult" they were. Pound lie accuses of childish thinking. "Pound has never completely freed himself of rulefetishism."64 While "aware of the judicial realities," he was nevertheless "reluctant to relinquish entirely the age-old legal myths."65

  In a chapter shrewdly entitled "The Candor of Cardozo,"66 Frank observed that "it would seem" that Cardozo "has reached adult emotional stature," because "unlike some of the other thinkers that we have discussed"67 he was willing to share his belief in legal uncertainty with the public. "No one has expounded more elaborately than Cardozo, for the benefit of the bar and the laity, the fact that law is uncertain and must be uncertain, that overeagerness for legal certainty and denials of legal contingency are harmful."68 Yet, "he makes it plain that he has learned to accept this belief only with bitterness. . . . [h]e implies that, one day, when 'a deeper insight is imparted to us,' we will need no longer to be content with 'makeshift compromise,' and truths that are 'merely approximate and relative,' and can then satisfy our 'yearning for the absolute' and be done forever with the curse of 'fluidity.' "69

  Finally, with trumpets sounding, Frank presents "Mr. Justice Oliver Wendell Holmes, The Completely Adult Jurist."70 "He has put away childish longings for a father-controlled world.. . ."71 "He has attained an adult emotional status, a self-reliant, fearless approach to life, and . . . he invites others to do likewise. We might say that, being rid of the need of a strict father, he can afford not to use his authority as if he, himself, were a strict father."72 One cannot avoid suspecting that Frank's own psychoanalysis had something to do with these observations.

  How are we to react to all of this today? None of it seems capable of being proven true or false. Actually, legal anthropology, in its infancy when Frank began writing, sought to illuminate some of these issues. But perhaps this is beside the point. Frank was engaged in a kind of cultural polemic that has been rare in the law. "Without straining too hard," Bruce Ackerman has written, "one can discern parallels to the thought of Frank and his fellow Realists in twentiethcentury art and science. Stravinsky, Picasso, Joyce, Einstein, and Freud each radically challenged the effort to structure objective reality into a single determinate rationalizable order."73 Indeed, after more than a half century of Freudian culture, we can hardly be shocked by any of Frank's assertions. They seem plausible, interesting, some perhaps even intuitively correct. Yet to Frank's contemporaries in 1930, they could only have come as a shocking and intemperate message from an alien culture. In successfully opposing Frank's appointment to the Yale Law School faculty in 1935, Arthur L. Corbin declared: "His well-known book seems to me to have fundamental defects that invalidate his major conclusions and will prevent it from having any permanent influence."74

  Law and the Modern Mind provided the opponents of Realism with the perfect target with which to tar the entire movement. Llewellyn's endorsement helped. Though he was quite skeptical of Frank's psychoanalytic explanations of the yearnings for legal certainty, he nevertheless roundly endorsed the book. "The book excites; it illuminates; it breaks new ground; it is an important contribution," Llewellyn concluded with his typically undogmatic generosity. 7s

  Along with Llewellyn's endorsement, the symposium in the Columbia Law Review contained the first of many attacks on Frank. The philosopher Mortimer Adler, who under the twin banners of Aristotelianism and Thomism was beginning the restoration of philosophical conservatism at the University of Chicago, enthusiastically undertook the task of discrediting Frank and Realism, indulging, with a kind of nasty delight, in the tactic of intellectual guilt by association. "I gladly accept Mr. Llewellyn's opinion that [Frank's] treatment is realistic in the best sense of the word, because it lends weight to my thesis that this book can be taken as representative of the school of legal thought which has raised so much dust in jurisprudential controversy in this country in the last twenty-five years." In criticizing Frank, Adler noted, he was also criticizing various Realists, as well as "to a lesser extent, Pound, Cardozo and Holmes."76 "If, as Mr. Llewellyn suggests, Law and the Modern Mind is a praiseworthy exhibition of realistic jurisprudence," Adler concluded, "it is also a composite picture of the confusions and failures in analysis which have pervaded the writings of Mr. Frank's oft-quoted doctrinal affiliates and chosen authorities, in philosophy and science as well as in jurisprudence." The trouble with the legal writers was "their philosophical incompetence and naivete, and the uncritical transference of their authoritarian habits of thought" from law to philosophy. 77

  Whether this was true, Frank was clearly obsessed with, as one of his chapter titles put it, "Getting Rid of the Need for Father-Authority."" One of these father-authorities was Roscoe Pound. Pound was clearly appalled by Law and the Modern Mind, and his wish bluntly to dissociate himself from it may have been prompted by Adler's sinister effort to use it against him.

  As Llewellyn was considering a reply to Pound's criticisms of Realism, he resumed his correspondence with Pound, who was friendly and conciliatory in reply. "I am sorry," Pound wrote, "if my attempt to understand and set forth a possible program for a group of thinkers with whom I have a great deal of sympathy should have appeared to be controversial."79 "If ever one scholar had offered an olive branch to another," N. E. H. Hull wisely concludes, "this was the moment."80

  Bu
t Llewellyn also informed Pound that "Jerome Frank had promised to go halves with me" on the planned reply to Pound, and that was enough to trigger Pound's alarm. "Something had turned Pound against Frank since their polite correspondence only six months before," Hull writes. "That something was undoubtedly the fact that Pound had finally read Frank's book. . . ."81 Pound wrote Llewellyn:

  I must confess I am troubled about Jerome Frank. When a man puts in quotation marks and attributes to a writer things which he not only never put in print any where, but goes contrary to what he has set in print repeatedly, it seems to me to go beyond the limits of permissible carelessness and to be incompatible, not merely with scholarship but with the ordinary fair play of controversy. . . . I cannot afford to discuss anything with one who uses such tactics, and should like to suggest to you whether you can afford to identify yourself with him.82

  Llewellyn immediately told Pound that he had informed Frank of the accusations. And Pound's criticism set off a manic flurry of activity by Frank that was slightly terrifying. "[B]oiling with indignation"83 over Pound's charges, Frank besieged the dean with a series of telegrams, letters, long lists of citations and quotations, all for the supposed purpose of correcting any misquotations before the impending second printing of the book. Pound's evasions and silence drove Frank to enlist intermediaries such as Felix Frankfurter, Thomas Reed Powell, and Judge Julian Mack. To Mack, for example, he wrote: "Would it be possible for you to write to Pound? After all, you were my sponsor and his vicious slaps at me does [sic] somewhat reflect on your judgment."84

  Over a two-month period between March and May 1931, then, Jerome Frank appears to have become somewhat unhinged by Pound's accusation. One wonders whether he really ever understood that the source of Pound's anger was not some isolated misquotation but rather the disrespectful treatment Pound had received at Frank's hands. "Getting Rid of the Need for Father-Authority" clearly lay behind the behavior of Frank-and, I suspect, Llewellyn too-in their encounters with Pound.