Frank, Jerome N. (1889–1957)

Author:Robert Jerome Glennon

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Jerome Frank held important positions in FRANKLIN D. ROOSEVELT'S NEW DEAL, pioneered American legal realism, taught at Yale Law School, and served on the United States Court of Appeals for the Second Circuit from 1941 until his death in 1957. During this period the Second Circuit

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was one of the most illustrious courts in the nation's history. On the court Frank developed a highly refined concept of his role as intermediate appellate judge. His decisions greatly influenced the United States Supreme Court by crystallizing and focusing legal issues and by articulating major considerations of precedent and policy. His opinions, even if written as concurrences or dissents, frequently became the law of the land when the Supreme Court followed Jerome Frank's lead. When the VINSON COURT and WARREN COURT protected CIVIL LIBERTIES, they often relied on the spadework of lower federal judges, prominently including Jerome Frank.

In his opinions Frank frequently addressed the Supreme Court as an advocate?urging, persuading, coaxing, and cajoling the Court to move in desired directions. At the same time, he recognized the limits imposed by his subordinate position, and he gracefully accepted those bounds. Frank faithfully followed Supreme Court precedent, but, if a rule seemed misguided, he would criticize the DOCTRINE and urge the Supreme Court to reexamine it. United States v. Roth (1956) illustrates Frank's technique. Although he considered a federal OBSCENITY statute unconstitutional, several Supreme Court decisions had assumed the statute's validity without squarely facing the issue. In a new challenge to the law, Frank did not dodge these earlier rulings by describing them as OBITER DICTA. Rather, he followed them and voted to uphold the convictions. At the same time, in a concurrence, he analyzed the serious constitutional issues with a coherence and lucidity that has not yet been surpassed. Frank's seminal effort anticipated many later Supreme Court cases which, over the next two decades, relied on Frank's opinion and reasoning. (See Roth v. United States, 1957.)

Protection for civil liberties was a persistent theme in Frank's judicial opinions. He believed that republican government maximized free choice and affirmed the dignity of the individual. On the Second Circuit he struggled to protect this vision. He regularly challenged the Supreme Court to expand the definition of, and protection for, civil...

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