Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P54 pptx

any “knowingly” or “intentionally” false state- ments, or statements made in “reckless disregard for the truth” (Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 [1978]). Inaccuracies due to negligence or innocent omission do not jeopardize a warrant’svalidity. The magistrate before whom an officer applies for a warrant must be “neutral and detached” (Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 [1971]). This means that the magistrate must be IMPARTIAL and not a member of the “competitive enterprise” of law enforcement (California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 [1991]). Thus, police officers, prosecutors, and attorneys general are disqua- lified from the role of magistrate. However, judges, lawyers, and court clerks all potentially qualify as “neut ral and detached” and, there- fore, may become magistrates. The require- ments that states set for becoming a magistrate vary widely, from having an attorney’s license to having a high-school diploma to simply being literate. Defective Warrants If a search is performed pursuant to a defective warrant, any evidence obtained as a result of the search is usually suppressed. An exception to this rule arises when an officer has obtained evidence pursuant to a defective warrant that the officer relied on in “good faith” (United States v. Leon, 468 U.S. 897, 104 S. Ct. 3430, 82 L. Ed. 2d 677 [1984]). For this exception to apply, the warrant must have been issued by a magistrate and then later ruled defective fo r a valid reason, and the defect must not have been the result of willful police deception. If these two requirements are satisfied, law enforcement was entitled to rely on the warrant in conduct- ing the search, and any evidence obtained during the search is admissible against the defendant. This exception was created to ensure that police officers would not be punished for blunders made by magistrates when issuing search warrants. Again, the primary reason courts suppress illegally obtained evidence is to deter future police misconduct. No deterrent value is served by excluding evidence obtained by an honest police officer who acted pursuant to an ostensibly valid warrant that was later ruled defective owing to an error by the magistrate. The Knock-and-Announce Rule The manner in which the police conduct a search pursuant to a lawfully obtained warrant can also raise Fourth Amendment concerns. Generally speaking, police officers must “knock and announce” their presence before entering a suspect’s home. However, both statutes and CASE LAW at the state and federal levels recognize several exceptions to the knock-and-announce requirement. For example, law enforcement need not knock and announce their presence (1) where it is necessary to liberate an officer or some person aiding an officer in the execution of a search warrant; (2) where persons inside the home already know of an officer’s authority and purpose; (3) where an officer is justified in the belief that persons inside the home are in imminent peril of bodily harm; (4) where officers reasonably believe that evidence would likely be destroyed if they kno cked and announced their presence; and (5) where officers reasonably be lieve that announcement might place them in physical peril. For many years, the remedy for violation of the knock-and-announce requirement was sup- pression of any evidence obtained after the police illegally entered the premises. In Hudson v. Michigan, 547 U.S. 586, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006), however, the Supreme Court ruled that evidence seized from a person’s home in violation of the knock-and-announce rule is still admissible at trial. The remedy of exclusion, the Court said, does not adequately balance the policy justification underlying the exclusionary rule, namely the deterrence of police misconduct, with the interests of society in crime prevention and punishment. In a 5–4 decision, the Court identified the interests protected by the knock-and-announce rule: (1) protection of human life and limb, because an unannounced entry may provoke violence in the form of self-defense by a surprised resident; (2) protection of property by avoidance of forcible entry; and (3) protection of the privacy and dignity of those inside the house. The Court next assumed that exclusion of the evidence seized following the illegal entry would advance the interests underlying the knock-and-announce rule. But “what the knock-and-announce rule has never protected,” the Court said, “is one’s interest in preventing the government from seeing or taking evidence described in a warrant, [and] since the interests that were violated in this case GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FOURTH AMENDMENT 519 have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.” The exclusionary rule has never been applied except where its “deterrence benefits outweigh its subst antial social costs,” the Court continued. The costs of applying the exclusion- ary rule in Hudson, the Court said, were considerable. In addition to the grave adverse consequence that exclusion of relevant incrimi- nating evidence always entails (i.e., the risk of releasing dangerous criminals into society), the Court opined, imposing such a massive remedy for knock-and-announce violations would generate a constant flood of litigation, with defendants claiming law enforcement failed to observe the rule. Allowing defendants to fol low this path would overwhelm the criminal justice system with knock-and-announce complaints, the Court concluded, and result in a “get-out- of-jail-free card” for untold numbers of defen- dants. The Court refused to let this happen. If an officer decides that the circumstances permit him to knock and announce his presence, but those inside the home still refu se to admit him, federal law authorizes the officer to use force to gain entry. “The officer may break open any outer or inner door or window of a house, any part of a house, or anything therein to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding in the execution of the warrant” (18 U.S.C. § 3109). Suspects cannot recover for damage to their homes caused by police officers who use force to enter the home, when the suspect denies entry to officers who have knocked and announced their presence, so long as the damage is not excessive or unnecessary (United States v. Ramirez, 523 U.S. 65, 118 S. Ct. 992, 140 L. Ed. 2d 191 [1998 ]). Consensual Searches Police often justify a SEARCH AND SEIZURE by stating that the suspect consented. Again, the U.S. Supreme Court has had to determine the boundaries of consent. In United States v. Drayton, 536 U.S. 194, 122 S. Ct. 2105, 153 L. Ed. 2d 242 (2002), the Court reviewed an Eleventh CIRCUIT COURT of Appeals decision that invalidated the pat-down search of two defen- dants who had been on a cross-country bus trip, even though both defendants had consented to the search. The appeals court concluded that the circumstances surrounding the search had not been sufficiently f ree of COERCION to serve as a constitutional basis for the search. The h igh c ourt reversed the decision, holding that police officers on public transportation do not need to inform each passenger that they have the right to refuse a search, pat-down, or questioning in order for the investigation to remain constitutional. It deemed the distinction between the confines of a bus and the open spaces of the street to be immaterial to the reasons why citizens choose to cooperate or not. Presumably, c itizens “know that their participation enhances their own safety and the safety of those around them.” Individuals who are on probation typically sign an agreement that allows police to enter their homes in order to ensure that they are complying with the terms of probation. Ques- tions have arisen over when police may search a probationer for ano ther crime if the person has signed a probation agreement that permits such searches. Police and government officials have argued that they may conduct a search without a warrant if they believe that the suspect has committed a new crime. Criminal defendants have argued that probation agreements that require them to submit to searches at anytime only apply to searches that have a probationary purpose rather than an investigatory purpose. The U.S. Supreme Court, in United States v. Knights, 534 U.S. 112, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2002), declined to issue a bright-line rule on this dispute but concluded that when police have reasonable suspicion and the probation agreement authorizes searches, the search is reasonable under the Fourth Amend- ment. Instead, the Court applied its traditional analysis for judging whether a warrantless search was reasonable. This “totality of the circumstances” approach looks at the intrusion of individual privacy and contrasts it with “legitimate governmental interests.” FURTHER READINGS Brandveen, Antonio I. 1998. “Criminal Profiling Treads Too Heavily on Fourth Amendment Rights.” New York Law Journal (September 9). Clancy, Thomas K. 2008. The Fourth Amendment: Its History and Interpretation. Durham, N.C.: Carolina Academic Press. Cuddihy, William J. 2009. The Fourth Amendment: Origins and Original Meaning. New York: Oxford University. Cunningham, Clark D. 1988. “A Linguistic Analysis of the Meanings of ‘Search’ in the Fourth Amendment: A Search for Common Sense.” Iowa Law Review 73. Gearan, Anne. 2001. “Police Need Warrant to Use Heat Sensors.” Chicago Daily Law Bulletin (June 11). LaFave, Wayne, and Jerald Israel. 1992. Criminal Procedure. 2d ed. St. Paul, MN: West/Wadsworth. Levy, Leonard. 1988. Original Intent and the Framers’ Constitution. New York: Macmillan. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 520 FOURTH AMENDMENT O’Neill, Timothy P. 2001. “4th Amendment Test Needs Overhaul Based on Trust.” Chicago Daily Law Bulletin (July 13). CROSS REFERENCES Criminal Law; Criminal Procedure; Exclusionary Rule; Fruit of the Poisonous Tree; Mapp v. Ohio; Stop and Frisk. FRANCHISE A special privilege to do certain things that is conferred by government on an individual or a corporation and which does not belong to citizens generally of common right, e.g., a right granted to offer CABLE TELEVISION service. A privilege granted or sold, such as to use a name or to sell products or services. In its simplest terms, a franchise is a license fro m the owner of a TRADEMARK or TRADE NAME permitting another to sell a product or service under that name or mark. More broadly stated, a franchise has evolved into an elaborate agreement under which the franchi- see undertakes to conduct a business or sell a product or service in accordance with methods and procedures prescribed by the franchisor, and the franchisor unde rtakes to assist the franchisee through advertising, promotion, and other advi- sory services. The right of suffrage; the right or privilege of voting in public elections. Such right is guaranteed by the Fifteenth, Nineteenth, and Twenty-fourth Amendments to the U.S. Constitut ion. As granted by a professional sports association, franchise is a privilege to field a team in a given geographic area under the auspices of the league that issues it. It is merely an incorporeal right. Government Franchises The consideration that is given by a person or corporation in order to receive a FRANCHISE from the government can be an agreement to pay money, to bear some burden, or to perform a public duty. The primary objective of all grants of franchises is to benefit the public; the rights or interests of the GRANTEE, the franchisee, are secondary. A corporation is a franchise, and the various powers conferred on it are also fran- chises, such as the power of an INSURANCE corporation to issue an insurance policy. Various types of business—such as water companies, gas and electric companies, bridge and tunnel authorities, taxi companies, along with all types of corporations—operate under franchises. The CHARTER of a corporation is also called its general franchise. A franchise tax is a tax imposed by the state on the right and privilege of conducting business as a corporation for the purposes for which it was created and in the conditions that surround it. Power to Grant The power to grant franchises is vested in the legislative department of the government, subject to limitations imposed by the state constitution. A franchise can be derived indirectly from the state through the agency that has been duly designated for that purpose, such as the local transportation agency that can grant a franchise for bus routes. Franchises are usually conferred on corporations, but natural persons can also acquire them. The grant of a franchise frequently contains express conditions and stipulations that the grantee, or holder, of the franchise must perform. Not every privilege granted by a governmen- tal authority is a franchise. A franchise differs from a license, which is merely a personal privilege or temporary permission to do some- thing; it can be revoked and can be derived from a source other than the legislature or state agencies. A franchise differs from a lease, which is a contract for the possession and profits of property in exchange for the payment of rent. Regulation Once a franchise is granted, its exercise is usually subject to regulation by the state or some duly authorized body. In the The 15th, 19th, and 24th Amendments to the U.S. Constitution guarantee the rights of franchise, or suffrage, to all citizens. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION FRANCHISE 521 exercise of police power—which is the authority of the state to legislate to protect the health, safety, WELFARE, and morals of its citizens—local author- ities or the political subdivisions of the state can regulate the grant or exercise of franchises. Right to Compete While a franchise can be exclusive, exclusiveness is not a necessary element of it. Nonexclusive franchises—includ- ing those to function or operate as a public utility—do not include the right to be free of competition. The grant of such a franchise does not prevent the grant of a similar franchise to another ENTITY, or lawful competition on the part of public authorities. The holder of a nonexclusive franchise is entitled to be free from the competition of an entity that does not have a valid franchise to compete. The holder can INSTITUTE a proceeding for an injunction—a court order that commands or prohibits a certain act—and monetary DAMAGES for the unlawful invasion of the franchise. Duration The legislature can prescribe the duration of a franchise. The powers of local authorities or political subdivisions of the state depend upon the statu te that confers the power to make grants and upon any CONSTITUTIONAL limitation. A franchise can be terminated by the mutual agreement of the state that is the franchisor, and the grantee or the franchisee. It can be lost by ABANDONMENT, such as when a corporation dissolves because of its FISCAL problems. A mere change in the government organization of a political subdivision of a state does not DIVEST franchise rights that have been previously acquired with the CONSENT of local authorities. A franchise cannot be revoked arbitrarily unless that power has been reserved by the legislature or proper agency. Forfeiture A franchise can be subject to forfei- ture due to nonuse. Misuse or failure to provide adequate services under the franchise can also result in its loss. The REMEDY fornonuseormisuse lies with the state. Persons other than the state or public authorities cannot challenge the validity of theexerciseofafranchiseunlesstheycan demonstrate that they have a peculiar interest in the matter distinct from that of t he gene ral public. Invasion of the Franchise A person or corporation holding a valid franchise can obtain an INJUNCTION to prevent the unlawful invasion of the franchise rights and can sue for monetary damages if there has been financial loss as a result of the INFRINGEMENT. Transfer of Franchises Subject to applicable constitutional or statutory limitation, franchises can be sold or transferred. Where the franchises involve public service, they cannot be sold or transferred unless there is authorization by the state. The person or corporation purchasing the franchise in an authorized sale takes it subject to its restrictions. Private Franchises Certain written contractual agreements are sometimes loosely referred to as franchises, although they lack the essential elements in that they are not conferred by any SOVEREIGNTY. The franchise system, or method of operation, has had a phenomenal growth in particular con- sumer product industries, such as automobile sales, fast foods, and ice cream. The use of a franchise in this manner has enabled individuals with minimal capital to invest to become successful members of the business community. Under the most common method of opera- tion, the cornerstone of a franchise system must be a trademark or TRADE NAME of a product. A franchise is a license from an owner of a trademark or trade name permitting another to sell a product or service under the name or mark. A franchisee agrees to pay a fee to the franchisor in exchange for permission to operate a business or sell a product or service according to the methods and procedures prescribed by the franchisor as well as under the trade name or trademark of the franchisor. The franchisee is usually granted an exclusive territory in which he or she is the only DISTRIBUTOR of the particular goods or services in that area. The franchisor is usually obligated by contract to assist the franchisee through advertising, promotion, re- search and development, quantity purchasing, training and education, and other specialized management resources. Before 1979 few state legislatures had enacted laws to protect prospective franchisees from being deceived by the falsehoods of dishonest franchisors. These laws, known as franchise disclosure laws, mandated that anyone offering franchises for sale in the state had to disclose material facts—such as the true costs of operating a franchise, any recurring expenses, and substantiated reports of profit earned—that would be instrumental in the making of an informed decision to purchase a franchise. In states that did not have such legislation, the unsophisticated investor was at the mercy of the franchisor’s statements. A victimized fran- chisee could sue a franchisor for breach of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 522 FRANCHISE contract, but this was an expensive proposition for someone who typically had invested virtually all of his or her financial resources in an unprofitable franchise. Franchisors confronted with numerous lawsuits often would declare BANKRUPTCY so that the franchisees had little possibility of recouping any of their investments. The FEDERAL TRADE COMMISSION (FTC) received numerous complaints about inequitable and dishonest practices in the sale of such franchises. In late 1978, it issued regulations, effective October 21, 1979, that require franchisors and their representatives to disclose material facts necessary to make an informed decision about the proposed purchase of a franchise and that establish certain practices to be observed in the franchisor-franchisee relationship. These rules are collectively known as the Disclosure Require- ments and Prohibitions Concerning Franchising and Business Opportunity Ventures, or more simply, the Franchise Rule. A franchisor must disclose the background of the company—including the business expe- rience of its high-level executives—for the previous five years; and whether any of its executives, within the last seven years, have been convicted of a FELONY, have pleaded NOLO CONTENDERE to FRAUD, have been held liable in a CIVIL ACTION for fraud, are subject to any currently effective court order or ADMINISTRATIVE AGENCY RULING concerning the franchise business or fraud, or have been involved in any proceedings for bankruptcy or CORPORATE REOR- GANIZATION for INSOLVENCY during the previous seven years. In addition, there must be a factual description of the franchise as well as an unequivocal statement of the total funds to be paid, such as initial franchise fees, deposits, down payments , prepaid rent on the location, and equipment and INVENTORY purchases. The conditions and time limits to obtain a refund, as well as its amount, must be clear as well as the amount of recurring costs, such as royalties, rents, advertising fees, and sign rental fees. Any restrictions imposed—such as on the amount of goods or services to be sold, the types of customers with which the franchisee can deal— the geographical area, and whether the franchi- see is entitled to protection of his or her territory by the franchisor must be discussed. The duration of the franchise, in addi tion to reasons why the franchise can be terminated or the franchisee’s license not renewed when it expires, also must be explained. The number of franchises voluntarily terminated or terminated by the franchisor must be reported. The franchisor must disclose the number of fran- chises that were operating at the end of the previous year, as well as the number of company-owned outlets. The franchisee must also be supplied with the names, addresses, and telephone numbers of the franchisees of the ten outlets nearest the prospective franchisee’s location, so that the prospective franchisee can contact them to obtain a realistic perspective of the daily operations of a franchise. If the franchisor makes any claims about the actual or projected sales of its franchises or their actual or potential profits, facts must be presented to substantiate such statements. All of these facts—embodied in an accurate- ly, clearly, and concisely written document— must be given to the prospective franchisee at the first personal meeting or at least ten days before any contractual relationship is entered or deposit made, whichever date is first. The purpose of this disclosure statement is to provide the potential investor with a realistic view of the business venture upon which he or she is about to embark. Failure to comply with the FTC regulation could result in a fine of up to $10,000 a day for each violation. Some states have also enacted laws that prohibit a franchisor from terminating a franchise without GOOD CAUSE, which usually means that the f ranchisee has breached the contract. In such a case, the franchisor is entitled to reacquire the outlet—usually by repurchasing the franchisee’s assets, such as inventory and equipmen t. In states without “good cause” laws, fran- chisees claim that they are being victimi zed by franchisors who want to reclaim outlets that have proven to be highly profitable. They allege that the franchisor imposes impossible or ridiculous demands that cannot be met to harass the franchisee into selling the store back to the franchisor at a fraction of its value. Company-owned outlets yield a greater profit to the franchisor than the ROYALTY payments received from the franchisee. Other franchisees claim that their licenses have been revoked or not renewed upon expiration because they complained to various state and FEDERAL agen- cies of the ways in which the franchisors operate. Such controversies usually are resolved in the courtroom. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FRANCHISE 523 FURTHER READINGS Andrews, Chris. 2003. “Granholm Pushing for Financial Disclosure Law.” Lansing State Journal (Michigan) (June 18). Profile of Franchising, Vol. III. 2000. International Franchise Association Educational Foundation. Washington, D. C.: FRANDATA Corp. Siatis, Perry C. 2000. “Assessing the FTC’s Proposed Franchise Rule Provisions Involving Electronic Disclo- sure.” Brigham Young Univ. Law Review (May 20). Available online at http://findarticles.com/p/articles/ mi_qa3736/is_200001/ai_n8886363/?tag=content;col1; website home page: http://findarticles.com (accessed July 25, 2009). v FRANK, JEROME NEW Jerome New Frank had a distinguished career as a judge but won perhaps even more renown as a legal philosopher and author. Frank was born September 10, 1889, in New York City. He received a Ph.B. from the University of Chicago in 1909 and a law degree from the University of Chicago Law School in 1912. His next twenty years were spent in private practice where he specialized in the reorganization of corporations. During the 1930s, Frank became involved in several of the agencies established as part of President Franklin D. Roosevelt’s NEW DEAL.In 1933 FELIX FRANKFURTER, then a law professor at Harvard, recommended Frank for the position of general counsel to the Agricultural Adjust- ment Administration (AAA) and the FEDERAL Surplus Relief Corporation. In 1935 however, Frank and several of his staff were fired because they insisted that benefits provided to cotton growers under AAA contracts should be shared with sharecroppers. Almost immediately, Roo- sevelt appointed Frank as special counsel to the Reconstruction Finance Corporation. From there Frank went to the Public Works Admin- istration (PWA) where he took an active part in the litigation that surrounded Roosevelt’s public power program. In his most notable case for the PWA, Frank prepared the government’s case in a suit that involved federal CONSTRUCTION of ELECTRICITY distribution systems. The Supreme Court upheld the government’s position in Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S. Ct. 300, 82 L. Ed. 374 (1938). After a brief return to private practice, Frank reentered public service in 1937 when Roosevelt appointed him to the SECURITIES AND EXCHANGE COMMISSION (SEC) at the request of the commis- sion’s chairman, WILLIAM O. DOUGLAS. After Douglas’s appointment to the Supreme Court in 1939, Frank succeeded him as chairman of the SEC. Two years later in 1941, Frank was appointed to the U.S. Court of Appeals for the Second Circuit, a position that he held until his death. Frank’s opinions were praised for their literary quality as well as for their legal analysis. Characteristically, they drew from a wide range of subjects—history, philosophy, art and litera- ture, sociology, and psychology, to name but a few—as well as from the more standard legal sources. In his concurring opinion in United States v. Roth, 237 F.2d 796 (1956), an obscenity case, Frank cited scientific, psychological, and economic EVIDENCE to support his conclusions. Another theme that runs through Frank’s opinions was his concern for persons who are weak and lacking in influence. In United States ex rel. Caminito v. Murphy, 222 F.2d 698, 706 (1955); cert. denied, 350 U.S. 896, 76 S. Ct. 155, Jerome New Frank 1889–1957 ▼▼ ▼▼ 19001900 19751975 19501950 19251925 ❖ ◆ 1889 Born, New York City 1914–18 World War I ◆ 1912–33 Practiced law in private sector, specializing in corporate reorganizations 1930 Law and the Modern Mind published 1933–35 Served as general counsel for the Agricultural Adjustment Administration 1937–41 Served on the Securities and Exchange Commission 1939–45 World War II 1945 Fate and Freedom published 1949 Courts on Trial published 1950–53 Korean War ◆ 1946–57 Visiting lecturer at Yale 1961–73 Vietnam War 1957 Died, New Haven, Conn.; Not Guilty, written with daughter Barbara Frank, published ❖ ◆ 1941 Appointed to U.S. Court of Appeals for the Second Circuit THE EFFORTS OF MEN PLANNING TO ACHIEVE A CERTAIN GOAL HAVE FREQUENTLY HAD RESULTS WHICH THOSE MEN DID NOT INTEND , WHICH INDEED WERE THE VERY OPPOSITE OF THEIR INTENTIONS . —JEROME FRANK GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 524 FRANK, JEROME NEW 100 L. Ed. 788, he wrote that the “ test of the moral quality of a civilization is its treatment of the weak and powerle ss.” In his DISSENT in United States v. Johnson, 238 F.2d 565, 568 (1956), he argued that a DEFENDANT with a meritorious case should not suffer a penalty “because he is GUILTY of the crime of being poor.” On APPEAL, the Supreme Court accepted Frank’s position and reversed the appeals court’s decision (352 U.S. 565, 77 S. Ct. 550, 1 L. Ed. 2d 593 [1957 ]). Frank’s reputation as a JURIST was equaled, if not exceeded, by his fame as a legal philosopher. In 1930 he published Law and the Modern Mind. Through this book and his later publica- tions, Frank became known as one of the leading exponents of LEGAL REALISM, a movement that flourished during the 1920s and 1930s. Legal realism began as a reaction against analytical POSITIVISM with its formalism and emphasis on logic that had dominated legal thought at the turn of the century. In contrast to the positivists who claimed that judges could apply known rules to the available facts and arrive with certainty at their decisions, Frank stressed the uncertainty of the decision-making process. He argued that psychological forces, including personal biases buried so deep in the unconscious that the judge was unaware of their existence, might influence the decision. Frank was also troubled by the difficulty of determining what was fact and what was not. He observed that courts receive their informa- tion months or even years after events occurred from witnesses who may be biased or may simply lack complete knowledge of the events they recount. The possibility that an INNOCENT person might be convicted worried Frank and led him to suggest reforms in the methods for ascertaining certain facts. His last book Not Guilty, in which his daughter collaborated, dealt with cases in which innocent people had been convicted. Frank also played a role in LEGAL EDUCATION, most notably at the Yale Law School. In 1932 he became a research associate at the Yale Law School and held the position of visiting lecturer at Yale from 1946 until his death. In addition, in 1931 and in 1946–47 he was a visiting lecturer in law and anthropology at the New School for Social Research in N ew Y ork City. At Yale Frank advocated changes in legal education including adding more social studies to the curriculum. He also argued that legal education had strayed too far from law as it was actually practiced. In addition to the works mentioned earlier, Frank’s books included Save America First (1938); If Men Were Angels (1942); Fate and Freedom (1945); and Courts on Trial (1949), a major discussion—and criticism—of the U.S. trial system. Frank died January 13, 1957, in New Haven, Connecticut. CROSS REFERENCE Jurisprudence. v FRANKFURTER, FELIX FELIX FRANKFURTER served as a government ATTORNEY in the early twentieth century and then taught law at Harvard Law School. In the 1920s and 1930s, he supported a number of liberal causes, including President Franklin D. Roosevelt ’s NEW DEAL. In 1939, he was appointed to the U.S. Supreme Court as an ASSOCIATE JUSTICE. Throughout his 23 years on the Court, he was known for consistently applying the theory of judicial self-restraint. Frankfurter was born November 15, 1882, in Vienna. At the age of twelve, he emigrate d from Vienna to the United States with his parents and four siblings. The Frankfurters, like many other Jews in Vienna, had lived in Leopoldstadt, the center of the Jewish Ghetto, where they faced an undercurrent of hostility and a future of economic uncertainty. Along with 18 million other Europeans who immi- grated to the United States between 1890 and 1920, the family sought a fresh start. Upon his arrival in the Lower East Side of Manhattan in 1894, Frankfurter could not speak a word of English. Yet, twelve years later, after earning his undergraduate degree from City College, in New York, Frankfurter graduated first in his class from Harvard Law School. Following a short stint with a private law firm on Wall Street, where he represented co rporate interests, Frankfurter was appointed to serve for the next four years as assistant U.S. attorney in the Southern District of New York, prosecuting white-collar criminals. In 1911, he was named SOLICITOR to the FEDERAL Bureau of Insular Affairs. Frankfurter enjoyed working as an attorney for the government much more than represent- ing corporations in private practice. He stressed THE HISTORY OF LIBERTY HAS LARGELY BEEN THE HISTORY OF THE OBSERVANCE OF PROCEDURAL SAFEGUARDS . —FELIX FRANKFURTER GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FRANKFURTER, FELIX 525 that “the American lawyer should regard himself as a potential officer of his government and a defender of its laws and Constitution.” He predicted that “if the time should ever come when this tradition ha[s] faded out and the members of the bar become merely the servants of business, the future of our liberties would be gloomy indeed.” In 1914 Frankfurter returned to his alma mater Harvard Law School, as professor of law. Frankfurter’s tenure as professor was marked by his intellectual honesty and rigor. Teaching only students of high academic standing, he tirelessly explored the law’s complexities and reveled in its nuances, helping his classes see both the gray areas and the bright lines. He also took a person al interest in his students, helping many of them obtain a clerkship with one of the United States’ leading judges, including OLIVER WENDELL HOLMES , JR., LOUIS D. BRANDEIS, and Learned Hand. Brandeis, a Supreme Court justice from 1916 to 1939, was one of Frankfu rter’s closest friends. The two met after a lecture Brandeis gave before the Harvard Ethical Society during Frankfurter’s days as a law student. Brandeis, who never had a son of his own, acted as a father and mentor to Frankfurter, who was twenty-six years his JUNIOR. During the 1930s, acting as an informal adviser to President Roosevelt, Frankfurter cajoled the president into supporting liberal causes espoused by Brandeis. Although Frankfurter claimed that he was not a member of any political party, he supported many liberal causes. In 1920 he became a charter member of the newly founded AMERICAN CIVIL LIBERTIES UNION, an organization created to protect the CONSTITUTIONAL rights of members of ethnic, religious, and racial minor- ities. During the 1930s Frankfurter served as an adviser to the National Association for the Advancement of Colored People ( NAACP). Frankfurter also helped develop many aspects of President Roosevelt’s New Deal programs. For example, he brought together the legislative engineers who drafted the SECURITIES Act of 1933 (15 U.S.C.A. § 77a to 77z, 77aa), which remains a prominent piece of federal law regulating the trading of stocks and BONDS. Frankfurter’s contribution to the case of Nicola Sacco and Bartolomeo Vanzetti identi- fied him as an activist for liberal causes in the mind of many U.S. citizens. Sacco and Vanzetti, Felix Frankfurter. PHOTOGRAPH BY HARRIS & EWING. COLLECTION THE SUPREME COURT OF THE UNITED STATES ▼▼ ▼▼ Felix Frankfurter 1882–1965 18751875 19251925 19501950 19751975 19001900 ❖ ❖ 1882 Born, Vienna, Austria ◆ 1894 Family immigrated to United States ◆ 1906 Appointed assistant U.S. attorney for Southern District of New York 1920 Became a charter member of the ACLU 1914–18 World War I ◆ 1914–39 Taught at Harvard Law School ◆ 1927 The Case of Sacco and Vanzetti published ◆ 1933 Helped draft the Securities Act of 1933 1939–45 World War II 1950–53 Korean War ◆ 1939 Appointed to U.S. Supreme Court ◆ 1944 Concurred with the majority in Korematsu v. United States, allowing forced relocation of Japanese American citizens ◆ 1954 Joined 9–0 majority opinion in Brown v. Board of Education 1965 Died, Washington, D.C. 1961–73 Vietnam War GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 526 FRANKFURTER, FELIX two Ita lian immigrants who spoke only broken English, were indicted for killing a guard and a paymaster from a shoe company in Massachu- setts in 1920. The physical EVIDENCE presented against Sacco and Vanzetti was tenuous. For the jurors who heard the case, the most incriminat- ing information may have been the defendants’ radical political beliefs: both were known anarchists who opposed the military DRAFT. Sacco and Vanzetti were convicted and executed for the two murders. Writing an article for the Atlantic Monthly, a venerable national publication with a wide readership, Frankfurter ACCUSED the pros ecuting attorney and trial judge of appealing to the jurors’ prejudice against the defendants’ politi- cal activities and immigrant status. Frankfurter also accused the prosecutor of conspiring with the government’s ballistics expert to mislead the jury. Finally, Frankfurter suggested that the court-appointed interpreter nefariously misre- presented the defendants’ testimony in order to enhance the prosecution’s case. Frankfurter supported each ACCUSATION with passages from the trial record. His article was later published as a book titled The Case of Sacco and Vanzetti (1927). The article and the book have served as a starting point for subsequent generations examining the role that passion, prejudice, and politics played in the trial of Sacco and Vanzetti, as well as in the trials of members of other unpopular minorities in the United States. In light of Frankfurter’s unyielding support for CIVIL RIGHTS and individual liberties, as a lawyer and professor of law, many liberals rejoiced when President Roosevelt appointed him to serve as an associate justice on the U.S. Supreme Court in 1939. However, by the time Frankfurter retired 23 years later, many of these same liberals were disappointed by his failure to embrace every religious and political minority that presented a claim before the Supreme Court. In retrospect, Frankfurter’s actions as a Supreme Court justice cannot adequately be characterized as liberal or conservative but are most accurately described as exhibiting a consistent pattern of judicial self-restraint. Judicial self-restraint is a theory by which a judge decides cases according to the express legal rules contained in constitutional and statutory provisions as well as common-law precedent, independent of the judge’s own personal pre- dilections. According to this theory, state and federal legislatures are the only legitimate gov- ernment bodies empowered to make laws under the U.S. Constitution, which separates the powers delegated to each branch of government. The role of the JUDICIARY in this system of checks and balances is simply to interpret and apply the laws passed by legislatures, and decide cases based on politically neutral principles regardless of how insensitive the outcome may seem. Advocates of judicial self-restraint believe that judges, many of whom are appointed to the bench for life and are therefore not accountable to the electorat e, upset the democratic authority of the people when they overturn laws passed by elected officials in order to achieve politically palatable results. Many observers point to the two FLAG Salute cases—Minersville School District v. Gobitis, 310 U.S. 586, 60 S. Ct. 1010, 84 L. Ed. 1375 (1940), and West Virginia State Board of Education v. Barnette, 319U.S.624,63S.Ct.1178,87L.Ed.1628 (1943)—as evidence that Frankfurter was a steadfast adherent to the philosophy of judicial self-restraint. Separated by only three years, the two cases presented the same issue: whether the government could compel schoolchildren who were Jehovah’s Witnesses to salute the U.S. flag in violation of their religious beliefs, which prohib- ited them from engaging in any form of idolatry other than worshipping the Almighty. In both cases, Frankfurter resolved the issue in favor of the government. In the first case, only one justice dissented from Frankfurter’smajorityopinion, which upheld the expulsion of students who had refused to salute the flag. In the second case, Frankfurter was one of three justices dissenting from the Supreme Court’s invalidation of a state law requiring all schoolchildren to salute the flag. Writing for the majority in Gobitis, Frankfurter recognized the FIRST AMENDMENT right of members of religious minorities to exercise their religious beliefs free from govern- ment intimidation or COERCION. But “the mere possession of religious convictions,” Frankfurter cautioned, “does not relieve the citizen from DISCHARGE of political responsibilities.” He reasoned, “National unity is the basis of national security,” and exempting some school- children from their duty to salute the flag “might introduce elements of difficulty into the school discipline [and] cast doubts into the minds of other children.” Because he saw no indication that the Framers of the First GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FRANKFURTER, FELIX 527 Amendment explicitly intended to protect the Jehovah’s Witness children in these circum- stances, Frankfurter concluded that the legisla- ture, not the judiciary, must be permitted to select the “appropriate means” to establish “the binding tie of cohesive sentiment” that forms the “ultimate foundation of a free society.” In Barnette, the Supreme Court overruled Gobitis and held that the First Amendment prohibits the government from compelling schoolchildren to salute the U.S. flag when such activity violates their religious beliefs. Many observers attribute the shift in the Court’s opinion to a decrease in the perceived need for patriotic obeisance: the outcome of WORLD WAR II , which was in doubt when Gobitis was decided in 1940, was clearer when Barnette was decided in 1943, as the Allied powers moved closer to victory. Yet Frankfurter, who had been excoriated in the newspapers and by his former colleagues in academia for his decision in Gobitis, remained unwavering in his commitment to judicial self- restraint. In a vituperative dissenting opinion to Barnette, Frankfurter wrote, One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution. Were my purely personal attitude relevant I should whole-heartedly associate myself with the general libertarian views in the Court’s opinion, representing as they do the thought and action of a lifetime. But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores. As a member of this Court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischie- vous I may deem their disregard Inthe light of all the circumstances, including the history of this question in this Court, it would require more daring than I possess to deny that reasonable legislators could have taken the action which is before us for review. Frankfurter was again assailed for his failure to protect political minorities, in KOREMATSU V. UNITED STATES, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944), where he concurred with the Court’s majority opinion permitting the U.S. government to confine over one hundred thousand U.S. citizens of Japanese descent to “relocation centers” (essentially concentration camps) across the United States during World War II. These relocation centers were autho- rized PURSUANT to joint presidential and con- gressional action initiated as part of an effort to tighten internal security in the United States following the December 7, 1941, Japanese attack on Pearl HARBOR. The Court’s determination that these centers represented a “reasonably expedient” exercise of the government’s power “to wage war successfully,” Frankfurter wrote, “d[id] not carry with it [the justices] approval of that which Congress and the Executive did” because “[t]hat is their business, not ours.” Frankfurter retired from the Supreme Court in 1962 and died three years later on February 22, 1965, in Washington, D.C. His legal career spanned over 50 years. Perceived as an advocate of liberal causes at the beginning of his career, Frankfurter is now remembered as much for his conservative judicial style. Regardless of political labels, Frankfurter remains one of the most respected Supreme Court justices in U.S. history. FURTHER READINGS Baker, Leonard. 1986. Brandeis and Frankfurter: A Dual Biography. New York: New York Univ. Press. Henderson, Lynne M. 1987. “Legality and Empathy.” Michigan Law Review 85. Hockett, Jeffrey D. 1996. New Deal Justice: The Constitution- al Jurisprudence of Hugo L. Black, Felix Frankfurter, and Robert H. Jackson. Lanham, MD: Rowman & Littlefield. Kaufman, Andrew L. 2001. “Constitutional Law and the Supreme Court: Frankfurter and Wellington.” New York Law School Law Review 45 (winter). Kelso, R. Randall. 1994. “Styles of Constitutional Interpre- tation and the Four Main Approaches to Constitutional Interpretation in American Legal History.” Valparaiso Univ. Law Review 29. Simon, James F. 2000. “Once a Crusader: Whether Mediating Strikes for Woodrow Wilson or Champion- ing the Least Popular of Defendants, Felix Frankfurter was Bound by Neither Court nor Classroom.” The American Lawyer 21 (December). CROSS REFERENCES Brown v. Board of Education of Topeka, Kansas; Japanese American Evacuation Cases; Judicial Review; Sacco and Vanzetti; “Some Reflections on the Reading of Statutes” (Appendix, Primary Document). v FRANKLIN, BENJAMIN As the only person to have signed the three most significant founding documents of the United States—the DECLARATION OF INDEPENDENCE GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 528 FRANKLIN, BENJAMIN . THE VERY OPPOSITE OF THEIR INTENTIONS . —JEROME FRANK GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 5 24 FRANK, JEROME NEW 100 L. Ed. 788, he wrote that the “ test of the moral quality of a civilization. HISTORY OF LIBERTY HAS LARGELY BEEN THE HISTORY OF THE OBSERVANCE OF PROCEDURAL SAFEGUARDS . —FELIX FRANKFURTER GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FRANKFURTER, FELIX 525 that “the American. relocation of Japanese American citizens ◆ 19 54 Joined 9–0 majority opinion in Brown v. Board of Education 1965 Died, Washington, D.C. 1961–73 Vietnam War GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E