"Reputation, Reputation, Reputation": Fred Rodell, Felix Frankfurter, and the Reproduction of Hierarchy in the Unlikeliest of Places

Andrew Yaphe, Stanford University

Abstract

If he is remembered at all, Fred Rodell is thought of as a marginal legal realist who spent his time irreverently mocking legal academia and the legal profession. Save for the “marginal” part, this description would be accepted even by Rodell’s admirers. But, as this Article shows, there is more to Rodell than witticisms. Rodell’s humor conceals a radical critique of elite legal education that prefigures the better-known critique put forth decades later by Duncan Kennedy. For Rodell, the institutions of elite legal education work to inculcate careerism and servility. And, for Rodell, the prime exemplar of the baleful influence of legal education was none other than Felix Frankfurter. In particular, this Article examines two of Rodell’s critiques of Frankfurter: his attack on Frankfurter’s slavish attitude toward Justice Holmes, and his consideration of Frankfurter’s veneration of “judicial restraint.” By following in Rodell’s footsteps and closely attending to what Frankfurter said about these topics, we can see how profoundly Frankfurter's worldview was shaped by the ideology of elite legal education.