Document Type

Article

Publication Date

2019

Abstract

In December 1933, Jerome Frank, the general counsel of the Agricultural Adjustment Administration but better for writing Law and the Modern Mind (1930), a sensational attack on legal formalism, told an audience at the Association of American Law Schools a parable about two lawyers in the New Deal, each forced to interpret same, ambiguous statutory language. The first lawyer, “Mr. Absolute,” reasoned from the text and canons of statutory interpretation without regard for the desirability of the outcome. “Mr. Try-It,” in contrast, began with the outcome he thought desirable. He then said to himself, “The administration is for it, and justifiably so. It is obviously in line with the general intention of Congress as shown by legislative history. The statute is ambiguous. Let us work out an argument, if possible, so to construe the statute as to validate this important program.” Although the memoranda the two produced were interchangeable, Mr. Try-It wrote his in a fifth the time.

Although the professors in attendance might have nodded approvingly, Frank’s speech, later printed in the Congressional Record, was startlingly impolitic in its muddying of a distinction between law and policy that he insisted upon when battling administrators over the terms of marketing agreements for agricultural commodities. How Frank actually drew the line owed less to his legal realist jurisprudence that the persuasiveness of his two associate general counsels, the radicals Lee Pressman and Alger Hiss.

Publication Citation

Fordham Law Review.

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