Monday, September 15, 2008

Roscoe Pound and the Administrative State

To my left as I write this, Roscoe Pound looks down from an autographed portrait, academic robes, Phi Beta Kappa key, kindly countenance and all. The photograph was probably taken in the 1940s and was given to me by the legal historian Laura Kalman, who got it from her father, who had it signed by Pound. It's a cherished possession because of my affection and regard for Laura and for what her gift symbolizes about collegiality among legal historians in the United States. But it is also a reminder of what can happen when a scholar identifies too closely with the ideas he espouses. For twenty years as dean of the Harvard Law School Pound interpret the applause that greeted his addresses as the bar's affirmation of his exalted vision of the lawyer in the American polity. Apparently he assumed the legal academe would follow his lead, but it set out on its own, taking his "sociological jurisprudence" in unexpected directions. By the time he stepped down from the deanship in 1936, Pound felt that not just his scholarly standing but the ideas he championed were in jeopardy. His writings during his long emeritus career--he died in 1964--were brittle, shrill, repetitive, and often otherworldly. G. Edward White said it well in the Dictionary of American Biography: in Pound one "confronts the paradox of a scholar who for a time can be said to have bestridden his profession like a colossus but who was so disinclined to probe beyond a certain point that one cannot find much of enduring value in his work. . . . His life is as much a tale of opportunities lost and reflections prematurely cut off as one of staggering achievements."

Many legal historians find themselves face to face with Pound at some point in their research. For legal historians of the American administrative state, he is an inescapable presence because of the harshly critical report he published as chairman of the American Bar Association's Special Committee on Administrative Law in 1938. Here is Michael Willrich's statement of the conventional view of Pound, from the afterword of his City of Courts:
The familiar storyline is a narrative of betrayal, of one's own life's work and the people it inspired: Brilliant young iconoclast, the best legal mind of his progressive generation, stuns the legal world in 1906 by announcing--in a speech to the ossified American Bar Association, no less--that the individualistic justice of the common law has proved unsuited to urban-industrial society, creating widespread "popular dissatisfaction with the administration of justice." In the 1910s he launches a broad movement for sociological jurisprudence that transforms legal education, helps to elevate the weight of social interests in judicial decision making, and lays the intellectual foundation for legal realism and the administrative state. But just when those years of collective work were finally bearing fruit, in the New Deal and the Supreme Court's "Constitutional Revolution of 1937," the former progressive makes a stunning reversal and denounces the whole enterprise--his whole enterprise--as a dangerously relativistic, absolutist, un-American nightmare. The denouement of this narrative echoes the legal realists' own professed shock at Pound's so-called about-face. "The reader of Pound's earlier writings," wrote Judge Jerome Frank, "rubs his eyes" and wonders, "Can this be the same man?"
One part of what Willrich has dubbed "the narrative of Pound's 'about-face'" is a reversal in his views about administrative agencies. In The Transformation of American Law, 1870-1960, Morton Horwitz wrote that Pound "spoke enthusiastically of the rise of administration" as late as 1924, when he published "The Growth of Administrative Justice." In that address, Pound "expressed the optimistic and experimental mindset characteristic of his great postwar writing," Horwitz wrote. "Administrative regulation was not bureaucratic or standardized justice but a superior form of justice in the individual case. What a far cry from Pound's later invocation of the judicial model as the only legitimate expression of the rule of law!"

The "narrative of Pound's 'about-face'" has other adherents. In Patterns of American Jurisprudence, Neil Duxbury wrote, "By the late 1930s, Roscoe Pound, once keen for the expansion of administrative powers, was rallying against what he termed the recrudescence of administrative absolutism." John Fabian Witt presents a somewhat hedged version in Patriots and Cosmopolitans. At an early stage of his career, Witt writes, Pound believed that "the conditions of the industrial age had exposed the limits of legal action in the common-law system and now cried out for the displacement of law by more efficient modes of modern administration." He approved of "administrative commissions on the Western European model," which "promised to substitute the new sociologically based economics Pound learned from [Edward Alsworth] Ross and [Richard] Ely for the classical and conservative economics of the Anglo-American common-law." He became "an inspiration for a rising generation of lawyers dedicated to increasing the capacity of the administrative state." Yet "there had always been a conservative streak running through Pound's thinking on administration and the common law"--which Witt identified as an aversion to radical departures that might "extinguish the individual altogether." As he aged, this streak grew stronger. After bitter battles with liberals on the Harvard law faculty, the death of his wife, and a sharp exchange with Karl Llewellyn, Pound felt bereft and upstaged. Craving attention, he found it by giving voice to his "lurking conservatism" in "a frontal assault on the administrative law being created by Roosevelt's New Deal."

Willrich saw "much truth" in the narrative of Pound's about-face, but he also thought it left out something "crucial": that Pound championed court reform "as a way to save the courts and the common law from the jurisdictional imperialism of the administrative state. Only by saving the courts could legal justice survive--and with it, its cherished protections for human freedom."

Like Willrich, I think the "about-face" narrative captures much truth about Pound's career--in particular, the reversal in what he symbolized for the legal wing of the American reform tradition. Like Willrich, too, I think that the narrative exaggerates Pound's enthusiasm for the administrative state in the early years of his career. His "conservatism"--really, an almost mystical faith in the common law--is quite apparent in his early writings on administrative agencies, and it erupted in a private exchange with the legal philosopher Morris Cohen in 1914. Such outbursts were infrequent as long as Pound thought the legal professoriat shared his commitment to a rejuvenated common law that could contain and discipline lay administrators, but by the latter half of 1937 he saw his ideas rejected and ridiculed and his opponents gaining power in New Deal America. The offer of the chairmanship of the ABA's committee on administrative law was a welcome opportunity to raise his standard and rally the bar to his side.

This is the first of a series of posts on Pound and the administrative state, which I intend to collect and publish with footnotes in some future venue. The next post follows Pound from his childhood to the time when he started writing on administration. Other posts will examine Pound's thinking about the administrative state in articles published between 1907 and 1924 and in his letter to Cohen. Concluding posts will take up Pound's chairmanship of the ABA's committee on administrative law in 1938, during which he eagerly played the provocateur but also disappointed the ABA's leaders.

The series continues here.

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