Jerome Frank, Law and Modern Mind – Legal Realism

Baloo Legal Realism Two Can Play from the Other Side of the Bench 2012 10-19

Frank seeks to explain, in a rough sense, what “the law” means for an average client when he or she consults a lawyer. He concedes that a complete definition of “the law” would be impossible, but he seeks to get a rough sense of what it actually means in the practice of the law. The “court law” is actual law consisted of specific past decisions as well as probable law of guesses of specific future decisions, with the latter being what a client is mainly concerned with when consulting a lawyer.

The Jones family own a corporation in Kentucky, named Blue & Gray Taxi Company. The Blue & Gray Taxi Company made a contract with another corporation, the A. & B. Railroad company incorporated in Kentucky. In this contract, the parties agreed that the Blue & Gray Taxi Company would have exclusive privilege of soliciting taxi business on and adjacent to the A. & B. Railroad Company’s depot.

But then, the rival Williams family’s corporation, the Purple Taxi Company, began to solicit taxi business on and adjacent to A. & B. Railroad’s depots along with trying to deprive the Blue & Gray Taxi Company of the benefits from its contract – ignoring the exclusive privilege contract.

The Jones family consulted their lawyer about this. He told them that their exclusive privilege contract was not legally valid because several decisions of the highest court of Kentucky have held that this type of contract creates an unlawful monopoly and as such cannot be valid. However, the lawyer said that he would think the matter over and asked the family to return the next day.

The next day, the Jones family returned. Their lawyer told them that he had thought of a way to get the contract sustained. He proposed that if the case could get tried in the Federal Court, they could get a different result than the Kentucky court. This is because courts in most states other than Kentucky and a few other exceptions would accept agreements like the exclusive privilege contract, and the Federal Court would likely follow this majority rule.

The lawyer said they would try to get the case tried in Federal Court by forming a new Blue & Gray Taxi Company in Tennessee and dissolving its Kentucky counterpart after cancelling the old contract with the Kentucky counterpart and creating a new exclusive privilege contract for the Tennessee company. When the Jones family asked if getting the case tried in Federal Court would result in their contract being accepted, the lawyer replied that he could not be completely sure, but he thinks that the Federal Court ought to decide in this way.

The Jones family took the case to Federal Court, which decided in their favour and enjoined the Williams family’s Purple Taxi Company from interfering with the depot contract of the Joneses’ Blue & Gray Taxi Company. The opposing side then appealed to the Federal Circuit Court of Appeals and then the Supreme Court of the United States, both of which confirmed the Federal Court ruling. To note, the Joneses’ lawyer had not been certain that the Supreme Court would decide in their favour since there were some new judges on the bench and two of the old members on the bench were erratic in their judgments, but the Supreme Court confirmed the Federal Court decision by a six to three decision.

The question that arises from this is example is: what was the law for the Jones and Williams families?

From this example, Frank concludes that what the law is for these families would depend on when we asked the question.

If we asked what the law is before the new Tennessee company made the new contract, it could be said that “the law” would be that the Joneses would lose at court because back then the case could only have been brought to the Kentucky court which had prior decisions adverse to exclusive privilege contracts.

If we asked the question after the Tennessee company got the contract, “the law” became more uncertain. Some lawyers could say that the Joneses would win at Federal Court because most State’s decisions, other than Kentucky and a few exceptions, would hold such a contract valid. However, an equal number of other lawyers could have disagreed, saying that the creation of the new Tennessee company was “a trick” to get around the Kentucky courts’ rule against unlawful monopolies and the Federal Courts would not approve of this type of trickery especially since Kentucky real estate was involved. As such, “the law” was unsettled before the decision of the United States Supreme Court, as nobody could know for sure what that court would decide. So, the law and the rights of the parties involved were not fixed prior to this decision, as the law and rights could be the complete opposite of what the Supreme Court ruled had the six judges on the bench agreed with the three dissenting judges instead.

It was after the Supreme Court decision that “the law” (after the Tennessee company got the contract) was fixed, as there were no other higher courts to appeal to. At this point, the law and rights of the Jones and Williams families were established.
Following this, Frank sketches a rough definition of what the law is from the perspective of an average layperson seeking the opinion of a lawyer. Firstly, for a particular layperson, the law in a particular fact scenario is a decision of the court with respect to those facts that affects this particular person. He writes: “[p]ior to such a decision, the only law available is the opinion of lawyers as to the law relating to that person to those acts. Such opinion is not actually law but only a guess as to what a court will decide”.

As such, the law can be defined as either of the following:

● Actual law as to the particular situation, such as a specific prior decision
● Probable law, being a guess to what a specific future decision in the particular situation would be

Frank notes that, usually, a client consults a lawyer to ascertain the latter type, “probable law”, asking “not what courts have actually decided in the past but what the courts will probably decide in the future”. For instance, a client could ask: “if Jones sells me his Chicago shoe business and agrees not to compete for ten years, will the agreement be binding?”; and a lawyer could reply: “the agreement is not legally binding.” Frank notes that lawyers’ answers to these questions are actually “prophecies or predictions” of how judges will actually decide.
Frank concludes by noting that his definition of court law from the practical point of view of clients when consulting lawyers, as comprising actual law of past decisions and probable law of prophesizing future decisions, is not how lawyers customarily define the law. He notes in a footnote on page 47 that: “From that point of view, court law may roughly be defined as specific past or future judicial decisions which are enforced or complied with.”

Sania Ahmed, Roseanna Gentry, Arnaldo Mitola, Stephen Shields

Con amicizia letto da Maria Elena Sandalli


Jerome Frank, Law and the Modern Mind, 1st ed (New York: Coward McCann, 1949) at 32-47.


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