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 />mi_qa3736/is_200001/ai_n8886363/?tag=content;col1;
website home page: (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