Say It with Music, 61 Harvard Law Review 921 (1948)
I have elsewhere suggested that judges, when applying (and therefore interpreting) statutory or other legal rules, may be compared with musical performers when playing (and therefore interpreting) musical compositions; that, perforce, judges, like musical performers, are to some extent creative artists. That comparison invites another, a comparison between criticism of the products of fine artists and criticism of judicial decisions. Such a discussion may seem to some persons to support the Englishman C. K. Allen's characterization of the ideas of some American lawyers as "jazz jurisprudence." But I shall risk such name calling. For, even in England, jazz has influenced serious musical composers; I and an English musical critic, after stating that "we must realize that the human mind reacts against the acceptance of new ideas," goes on to say: "When Monteverdi, over three hundred years ago published the System of Discords, the whole host of critics took up arms against him. Yet in time his theories became current practice, and were included in even the most academic text-books of composition . . . These styles and developments have been absorbed into our musical vocabulary until by now they are meaningless conventionalities. As composers 9trive to penetrate unexplored fields of musical interpretation, they invariably encounter this conservative reaction against the unfamiliar."
Date of Authorship for this Version
Frank, Jerome N., "Say It with Music" (1948). Faculty Scholarship Series. Paper 4097.