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26 Ill. L. Rev. 761 (1931-1932)
What Courts Do in Fact - Part Two

handle is hein.journals/illlr26 and id is 772 raw text is: WHAT COURTS DO IN FACT* By JEROME FRANK PART Two I I have been saying that knowledge of the so-called legal rules, principles and the like has proved an unsatisfactory basis for pre- dicting court decisions (judgments, orders, and decrees) in specific contested lawsuits.46 Yet, when all is said and done, it cannot be denied that formal law has a proper place in the training of lawyers. Although rules and the like play a far smaller part in bringing about decisions than the formalists suppose, no sane person would deny that some part they do play.47 Among the reasons why the practicing lawyer needs to learn about legal rules and principles are these: The so-called rules and principles have some effect on judges. A knowledge of such generalizations is therefore of some aid to lawyers when guessing about the outcome of future cases. If you know about the rules and principles, your guesses will be somewhat more trustworthy than if you do not. The rules are also of some aid in persuading courts to decide one way rather than another. If you do not know those rules and principles your persuasiveness as lawyer will be diminished. Par- ticularly where no jury is involved, the rules of formal law are often operative as stereotypes in affecting, as one of the many stimuli, the judges' decisions. In uncontested cases-cases where the facts are admitted by default, stipulation, or demurrer-the legal rules are often con- trolling; the lawyer who is well acquainted with the pertinent rules can frequently predict the outcome of such cases. Not that *Continued from the February issue of the ILLINOIs LAW REVImW. 46. It is desirable to repeat that, throughout this paper, a decision means an enforceable court order, judgment, or decree; that a contested case means a case in which a question of fact is raised and in which con- flicting testimony is introduced with respect to the facts in question; and that this paper (except where the contrary is expressly stated) relates solely to contested cases. 47. Frank Law and the Modern Mind, 104, 130-133, 270; (1931) 40 Yale Law Jour. 1120, 1123-1124. [761]