When I posted the abstract for Charles Barzun's paper on Jerome Frank's Law and the Modern Mind, I was reminded of an exchange between Frank and Felix Frankfurter in 1935, which I happened to stumble upon (again) this week. Frank had just been "purged" from the Agricultural Adjustment Administration. He landed at the Reconstruction Finance Corporation and then was loaned to the Public Works Administration to defend the PWA in a constitutional challenge to its funding of municipal power companies. The "Power Trust" was one of Frankfurter's great foes, and he was concerned that Frank might say something outré and alienate the judges. "It is extremely important to try to employ familiar concepts, expressed in very familiar, simple, unarousing language," the Harvard law professor advised.Frank, who held the gossip of Frankfurter's protege Thomas Corcoran partially responsible for his firing, did not feel in need of instruction. "My strategy has been exactly that suggested by you, to assert on behalf of the government no more power than is necessary to justify the precise action heretofore taken by it. You ought to know that I do not believe in trying to vindicate abstract principles and that the thing to do is to win particular cases."
The two fired further rounds at each other, including Frankfurter's declaration, "Of course I still continue to think that you are wrong in thinking, as I believe you think, that most of law is bunk, but that you dish up the bunk because other people like to feed on it." Frank replied,
I don't say that "most law is bunk." You remember the farmer who was asked if he believed in baptism and who replied "Believe in it? Hell, I've seen it." I think "law" is damned real. But I do not believe that it works the way it appears, on the surface, to work. I think that many legal ceremonials could be eliminated. But while they exist, they play an important part in their effects on human lives. Therefore, as lawyer, I want to be well up on them and meticulously practice them. To use highbrow terms, I think that, pragmatically, practice, procedure and substantive law intermingle or, to put it differently, "substantive law" is merely one of the implements used in a court fight, one of the implements of persuasion used to induce a court to issue an order which will be backed by armed force, if necessary, to compel someone to do what your client wants him to do.
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