Jerome Frank's "Music": Thinking About Law as an Aesthetic Domain

Some additional thoughts that are not part of the essay:

[1] I disagree with Frank's notion that legal rules inhibit imagination and insight. In the courtroom, we trade many of our less systematized, more individualized ordinary rules of language for carefully organized structures of rules (e.g., evidence, voir dire, and discovery rules). Imagination and insight in the courtroom get their start from rules, like how the rules of a boardgame create the conditions necessary to play. Rules can also intensify imagination and insight, like how the Dogme 95 movement intensifies the director's creativity by placing restrictions on filmmaking. The rules of legal proceedings cordon off rules of ordinary language to sustain meaning-making that could only happen within a controlled environment. Thus, using courtroom language games, we relegate Frank’s concerns about rules inhibiting insight and imagination, to some extent, to the everyday language rules left outside the courtroom.

[2] Doctrinal classes also do not employ music in the Frankian sense because facts on exams are a given. Frank criticized the Langdellian case method of teaching law for over-focusing on legal rules and upper court decisions. That said, I think there is something unintentionally Frankian about law school exams in that we are trying to make professors feel like we understood them and their creative process in designing hypotheticals based on their interpretation of the subject. Exams carry professors’ psychologies to varying degrees. To provide a trivial example, Judge-jester Rakoff’s exam involved a defendant who knew a crime was being committed named ‘Chuck Noes.’