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.. No deterrent value is
Trang 1any “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’s validity
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
IMPARTIALand 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 “neutral 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 for 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 LAWat 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 knocked and announced their presence; and (5) where officers reasonably believe 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
FOURTH AMENDMENT 519
Trang 2have 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 substantial 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 follow 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 refuse
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 aSEARCH AND SEIZUREby 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 free of COERCION to serve as a
constitutional basis for the search The high court 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, citizens “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 another 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.
Trang 3O ’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
offerCABLE TELEVISIONservice
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 from 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 undertakes 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 Constitution
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 aFRANCHISEfrom
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 FRANCHISE 521
Trang 4exercise 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 canINSTITUTEa 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 statute 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 itsFISCALproblems 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 TheREMEDYfor nonuse or misuse lies with the state Persons other than the state or public authorities cannot challenge the validity of the exercise of a franchise unless they can demonstrate that they have a peculiar interest in the matter distinct from that of the general public
Invasion of the Franchise A person or corporation holding a valid franchise can obtain
an INJUNCTIONto prevent the unlawful invasion
of the franchise rights and can sue for monetary damages if there has been financial loss as a result of theINFRINGEMENT
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 anySOVEREIGNTY 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
Trang 5contract, 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
TheFEDERAL 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 orADMINISTRATIVE
AGENCY RULINGconcerning the franchise business
or fraud, or have been involved in any
proceedings for bankruptcy orCORPORATE
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 addition 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, clearaccurate-ly, 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 franchisee 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 equipment
In states without “good cause” laws, fran-chisees claim that they are being victimized 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
FRANCHISE 523
Trang 6FURTHER 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).
vFRANK, 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
1933FELIX 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 economicEVIDENCEto 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,
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
—J EROME F RANK
Trang 7100 L Ed 788, he wrote that the “test of the
moral quality of a civilization is its treatment of
the weak and powerless.” 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.” OnAPPEAL, 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 aJURISTwas 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 ofLEGAL 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 inLEGAL 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 New York 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.
vFRANKFURTER, 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 emigrated 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 corporate 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
—F ELIX F RANKFURTER FRANKFURTER, FELIX 525
Trang 8that “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 personal 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 Frankfurter’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 theSECURITIESAct of 1933 (15 U.S.C.A § 77a to 77z, 77aa), which remains
a prominent piece of federal law regulating the trading of stocks andBONDS
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
❖
❖
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
Trang 9two Italian 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, FrankfurterACCUSEDthe prosecuting
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 ACCUSATIONwith 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
forCIVIL RIGHTSand 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 electorate, 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 twoFLAGSalute 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,
319 U.S 624, 63 S Ct 1178, 87 L 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’s majority opinion, 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
FRANKFURTER, FELIX 527
Trang 10Amendment 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 In the 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).
vFRANKLIN, BENJAMIN
As the only person to have signed the three most significant founding documents of the United States—theDECLARATION OF INDEPENDENCE