# Source for quote: "Legislatures make laws wholesale, courts do so retail" **URL:** \ **Category:** Factual Questions\ **Created:** [July 13, 2017, 7:17pm UTC](https://boards.straightdope.com/t/source-for-quote-legislatures-make-laws-wholesale-courts-do-so-retail/791191 "2017-07-13T19:17:33Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 13, 2017, 7:17pm UTC](https://boards.straightdope.com/t/source-for-quote-legislatures-make-laws-wholesale-courts-do-so-retail/791191/1 "2017-07-13T19:17:33Z")
I know that this quotation is generally attributed to Professor Lawrence Friedman, sometimes with a year of 1984, but I can’t find the source of the quote online. Can anyone help? Thanks! ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 13, 2017, 7:50pm UTC](https://boards.straightdope.com/t/source-for-quote-legislatures-make-laws-wholesale-courts-do-so-retail/791191/2 "2017-07-13T19:50:56Z")
It actually appears that Justice Frankfurter is the original source. > [@](#): > > Or as a graduate of N.Y. City College, Justice Frankfurter, put it more prosaically: “legislatures make law wholesale, judges retail.” Joseph P. Lash, From the Diaries of Felix Frankfurter 67 (1975) (quoting unidentified letter from Felix Frankfurter to Hugo Black). > > Costantino v. Herzog, 203 F.3d 164 I can’t find Lash’s book online so I can’t tell you if the quote is actually in it, but there is a law review article that includes the quote in context: > [@](#): > > Frankfurter actually lectured a sitting Justice as if he were no more than a first-year law student. Frankfurter’s letter was as follows: > > Judges . . . cannot escape the responsibility of filling in gaps which the finitude of even the most imaginative legislation renders inevitable. . . . So the problem is not whether the judges make the law, but when and how much, Holmes put it in his highbrow way, that “they can do so only interstitially: they are confined from molar to molecular motions.” I used to say to my students that legislatures make law wholesale, judges retail. In other words they cannot decide things by invoking a new major premise out of whole cloth; they must make the law that they do make out of the existing materials with due deference to the presuppositions of the legal system of which they have been made a part. Of course I know that these are not mechanical devices, and therefore not suscepti- ble of producing automatic results. But they sufficiently indicate the limits within which judges move. > > Id. at 67-68 (quoting unidentified letter from Felix Frankfurter to Hugo Black). > > FELIX FRANKFURTER: THE ARCHITECT OF “OUR FEDERALISM”, 27 Ga. L. Rev. 697 at fn. 442. Black was appointed in 1937 so presumably the letter was written on or shortly after then. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [July 13, 2017, 7:51pm UTC](https://boards.straightdope.com/t/source-for-quote-legislatures-make-laws-wholesale-courts-do-so-retail/791191/3 "2017-07-13T19:51:52Z")
Looks like it’s Justice Frankfurter. > [@](#): > > Frankfurter actually lectured a sitting Justice as if he were no more than a first-year law student. Frankfurter’s letter was as follows: > > Judges … cannot escape the responsibility of filling in gaps which the finitude of even the most imaginative legislation renders inevitable… So the problem is not whether the judges make the law, but when and how much, Holmes put it in his highbrow way, that “they can do so only interstitially: they are confined from molar to molecular motions.” I used to say to my students that legislatures make law wholesale, judges retail. In other words they cannot decide things by invoking a new major premise out of whole cloth; they must make the law that they do make out of the existing materials with due deference to the presuppositions of the legal system of which they have been made a part. Of course I know that these are not mechanical devices, and therefore not susceptible of producing automatic results. But they sufficiently indicate the limits within which judges move. Mary Brigid McManamon, Felix Frankfurter: The Architect of “Our Federalism”, 27 Ga. L. Rev. 697, 788 (1993) ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 13, 2017, 8:08pm UTC](https://boards.straightdope.com/t/source-for-quote-legislatures-make-laws-wholesale-courts-do-so-retail/791191/4 "2017-07-13T20:08:57Z")
Thanks, gents! That was quick. I had an idea it was a Supreme Court justice, so was surprised when the on-line cites all pointed to Friedman. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 13, 2017, 8:12pm UTC](https://boards.straightdope.com/t/source-for-quote-legislatures-make-laws-wholesale-courts-do-so-retail/791191/5 "2017-07-13T20:12:48Z")
Just curious how you two found it? I was googling all sorts of variants, but just kept getting references to Friedman, not Frankfurter. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 13, 2017, 8:15pm UTC](https://boards.straightdope.com/t/source-for-quote-legislatures-make-laws-wholesale-courts-do-so-retail/791191/6 "2017-07-13T20:15:34Z")
I tried running the full quote, then snippets, through LexisNexis in quotes. That didn’t work, so I started googling snippets instead. Eventually I found [this book](https://books.google.com/books?id=OmA8a1Q9UekC&pg=PA277&lpg=PA277&dq=%22judges+retail%22+wholesale&source=bl&ots=-jpd0Shxnz&sig=BCENN54RSp_XuqoU8zaYHYjXDkc&hl=en&sa=X&ved=0ahUKEwiz7cKmiYfVAhXEWT4KHb4zDXcQ6AEILTAC#v=onepage&q=%22judges%20retail%22%20wholesale&f=false), and running it through Lexis again with “judges retail” rather than “courts retail” did the trick. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 13, 2017, 8:20pm UTC](https://boards.straightdope.com/t/source-for-quote-legislatures-make-laws-wholesale-courts-do-so-retail/791191/7 "2017-07-13T20:20:08Z")
Ah-ha! Now I know why I thought it was an SC justice - it’s quoted in The Antagonists, the dual bio of Black and Frankfurter which is actually sitting on my bookshelf. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [July 13, 2017, 8:21pm UTC](https://boards.straightdope.com/t/source-for-quote-legislatures-make-laws-wholesale-courts-do-so-retail/791191/8 "2017-07-13T20:21:34Z")
> [@Northern\_Piper](#): > > Just curious how you two found it? I was googling all sorts of variants, but just kept getting references to Friedman, not Frankfurter. I used Westlaw, put in the quote and searched law review articles. Seemed like something that someone would put in an article. And turns out, I was right. Now you owe me $650 for the westlaw search. 😉 ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 13, 2017, 8:26pm UTC](https://boards.straightdope.com/t/source-for-quote-legislatures-make-laws-wholesale-courts-do-so-retail/791191/9 "2017-07-13T20:26:51Z")
:eek: And you’re waiving your own hourly rate, I take it? ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [July 13, 2017, 8:27pm UTC](https://boards.straightdope.com/t/source-for-quote-legislatures-make-laws-wholesale-courts-do-so-retail/791191/10 "2017-07-13T20:27:07Z")
Now I’m curious as to what sort of brief would need this. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 13, 2017, 8:29pm UTC](https://boards.straightdope.com/t/source-for-quote-legislatures-make-laws-wholesale-courts-do-so-retail/791191/11 "2017-07-13T20:29:57Z")
An eclectic one. 🙂 Asked on behalf of a colleague, so can’t say more than that on a message board. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 13, 2017, 8:31pm UTC](https://boards.straightdope.com/t/source-for-quote-legislatures-make-laws-wholesale-courts-do-so-retail/791191/12 "2017-07-13T20:31:52Z")
> [@Northern\_Piper](#): > > :eek: > > And you’re waiving your own hourly rate, I take it? We can work something out. 😃 ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [July 13, 2017, 8:34pm UTC](https://boards.straightdope.com/t/source-for-quote-legislatures-make-laws-wholesale-courts-do-so-retail/791191/13 "2017-07-13T20:34:29Z")
> [@Really\_Not\_All\_That\_Bright](#): > > We can work something out. 😃 I’d prefer a percentage of the eventual recovery. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 13, 2017, 8:54pm UTC](https://boards.straightdope.com/t/source-for-quote-legislatures-make-laws-wholesale-courts-do-so-retail/791191/14 "2017-07-13T20:54:11Z")
Even if successful, just glory, I’m afraid. 😉 ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 13, 2017, 8:55pm UTC](https://boards.straightdope.com/t/source-for-quote-legislatures-make-laws-wholesale-courts-do-so-retail/791191/15 "2017-07-13T20:55:13Z")
As a side note, I find it interesting to see how many of the legal dopers check the SDMB during office hours… 🙂 ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 13, 2017, 9:17pm UTC](https://boards.straightdope.com/t/source-for-quote-legislatures-make-laws-wholesale-courts-do-so-retail/791191/16 "2017-07-13T21:17:12Z")
I was actually in an office-wide health insurance enrollment meeting, but I frequently post/lurk during office hours anyway. ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [July 14, 2017, 1:33am UTC](https://boards.straightdope.com/t/source-for-quote-legislatures-make-laws-wholesale-courts-do-so-retail/791191/17 "2017-07-14T01:33:26Z")
> [@Northern\_Piper](#): > > As a side note, I find it interesting to see how many of the legal dopers check the SDMB during office hours… 🙂 Never! My last post was about 6.30am my time! Oh, wait, the very act of posting this denial is now evidence of the truth of your proposition. Dammit. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [July 14, 2017, 12:41pm UTC](https://boards.straightdope.com/t/source-for-quote-legislatures-make-laws-wholesale-courts-do-so-retail/791191/18 "2017-07-14T12:41:27Z")
Had never actually heard that quotation before, but glad someone else had and was able to track it down. And yes, I have been known to check the Dope during work hours when I have some time on my hands. Like, er, now… ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 14, 2017, 3:34pm UTC](https://boards.straightdope.com/t/source-for-quote-legislatures-make-laws-wholesale-courts-do-so-retail/791191/19 "2017-07-14T15:34:13Z")
I of course only use it for legal research, he said with an air of smug virtue. Thanks for all the comments, everyone. My colleague ultimately decided to cut the quote because she is trying to keep citations to a minimum. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [July 14, 2017, 3:46pm UTC](https://boards.straightdope.com/t/source-for-quote-legislatures-make-laws-wholesale-courts-do-so-retail/791191/20 "2017-07-14T15:46:14Z")
> [@Northern\_Piper](#): > > As a side note, I find it interesting to see how many of the legal dopers check the SDMB during office hours… 🙂 It’s my only vice.