Document Type

Article

Publication Date

1998

Abstract

The ability of courts to successfully resolve complex cases has been a matter of contentious debate, not only for the last quarter-century, but for most of the twentieth century. This debate has been part of the legal landscape at least since Judge Jerome Frank's polemic book from which this Symposium derives its title, and probably since Roscoe Pound's famous address to the American Bar Association. During the 1980s and 1990s in particular, the battlelines of the pro-and anti-court debate have been brightly drawn. Some commentators, most reliably successful plaintiffs' counsel and politically liberal academics, defend the judicial track record in complex matters. Simultaneously, the defense bar and the conservatives of bench, bar, and academy tend to be critical, particularly of the jury system.

Ironically, Judge Frank represents perhaps the most prominent exception to this tendency for one's assessment of the courts to mirror one's general political views. Judge Frank is generally viewed as a progressive Democrat, but this liberalism did not, apparently, stem from any particular faith in the “common man.” Frank was disdainful of the jury and the mythical reverence attached to it. Although no proponent of juries, Judge Frank was also critical of judges. Further irony lies in Judge Frank's notorious opposition to summary judgment, a surprising result in light of his skeptism about fact-finding generally and juries in particular. As one might expect of a charter member of the New Deal Franklin Delano Roosevelt Administration that created so many new government agencies, Judge Frank appeared to endorse the administrative agency as the rational adjudicator/policymaker of choice, although he also held reservations about administrative agency fact-finding. Although Judge Frank was enigmatic about what he really wanted when he criticized courts, it seems safe to say that he wanted less layperson decision-making and more policymaking and dispute resolution by technical experts such as agency officials. Judge Frank was mercifully beyond the scene when the public choice scholarship of the past thirty years dramatically punctured the original optimism surrounding New Deal agencies and faith in government.

Publication Citation

40 Ariz. L. Rev. 781 (1998).