Variations on Some Themes of a Disporting Gazelle and His Friend: Statutory Interpretation as Seen by Jerome Frank and Felix Frankfurter

In 1947, this Review published two lectures on statutory interpretation by Jerome Frank and Felix Frankfurter. Both jurists were concerned with a basic question: How constrained are judges when they interpret legislation? The answers each gives, while similar in some respects, differ strikingly. In arguing that interpretation necessarily involves a creative element, Frank analogizes the role of a judge in interpreting legislation to that of a performer in interpreting a musical composition. Although he argues that judicial creativity is constrained, Frank views statutory interpretation as a kind of legislation. For Frankfurter, by contrast, in construing a statute, a judge is to disinterestedly carry out the purposes of the legislature. Judicial legislation oversteps the function of the courts. In this Essay, Professor Greenawalt examines these competing paradigms by contrasting them not only with each other, but also with certain illuminating opinions written by Frank and Frankfurter. While the opinions help to point out the limitations of each theory, Professor Greenawalt argues that the Frank and Frankfurter\u27s accounts remain important voices in the contemporary debates about statutory interpretation