[The following is the second in a series of posts on Roscoe Pound and the administrative state. The series starts here. This post draws upon N.E.H. Hull’s Roscoe Pound and Karl Llewellyn, G. Edward White’s entry in the Dictionary of American Biography, and David Wigdor’s Roscoe Pound. The photograph of Pound, taken in 1909, is in the University of Nebraska’s Archives and is reproduced in Hull’s book.]
Law was not Roscoe Pound's first love, but it was his longest and deepest attachment. Pound was born in 1870 in Lincoln, Nebraska, the son of a judge and a former schoolteacher. “The Pound household was affluent and dedicated to learning,” the G. Edward White writes, and in young Roscoe it produced a hothouse child. Pound learned to read at three; at fourteen he entered the University of Nebraska, where he became fascinated with botany. Upon graduation he and his father tussled over his career: Judge Pound wanted his son to read law in his office, but he also permitted him to take graduate classes in botany. When his father offered to send Roscoe to the Harvard Law School, the son apparently accepted because of the opportunity it provided to study with Harvard’s botanists on the side. The case method captivated him, however, and although he completed a doctoral dissertation in botany after returning to Nebraska, the law ultimately prevailed. As a young lawyer he threw himself into organizing and defending the institutional pillars of the modern legal profession. He was among the founders of the Nebraska State Bar Association, helped draft its constitution, and served for six years as its secretary. He was a member and secretary of the state’s bar examining commission. He called for Nebraska’s judges to don the robe and deplored the persistence of lay judges in the state. (“J.P.,” he once joked, stood for “Judgment for plaintiff” whenever the defendant was wealthy enough to pay a justice of the peace’s court costs.) In 1901 he had the chance to display the “dignity, authority and eminence” of the judiciary when he was appointed to a commission charged with reducing a backlog of cases before the state supreme court. He was all of thirty years old.
Above all, Pound raised the scholarly standards of the state’s law school. He started teaching jurisprudence and Roman law as an instructor in 1895, joined the faculty in 1899, and became dean in 1903. All the while he was working out the principles of his “sociological jurisprudence,” a hybrid of recent German legal scholarship and the notion of “social control” developed by his Nebraska colleague, the sociologist E. A. Ross.
Pound’s big break came in 1906 when he addressed the annual meeting of the American Bar Association in St. Paul, Minnesota. His speech, “The Causes of Popular Dissatisfaction with the Administration of Justice,” was, as White writes, “a curious blend of traditional criticisms of the legal profession ... and prescient suggestions for reform.” It was also a sensation in its attack on the lawyer-run trial, in which masters of common-law pleading shape lawsuits to their liking and reduce the judge to “a mere umpire” who is “to decide the contest, as counsel present it, according to the rules of the game, not to search independently for truth and justice.” Pound’s heresies offended trial lawyers who refused to print his address as a pamphlet, but progressive lawyers in attendance, who believed that“socialized” courts required strong judges, knew they had found a champion. Northwestern’s law dean John Henry Wigmore declared Pound’s St. Paul address “The Spark That Kindled the White Flame of Progress” and a fierce attack on the “stout defenders of Things-As-They-Are.”
When, in 1907, Wigmore offered Pound a job and a reduced teaching load, the Nebraskan never looked back. Soon he published brilliant attacks on Lochner-era judging, “Mechanical Jurisprudence” and “Liberty of Contract.” When the University of Chicago offered Pound a better job, Northwestern tried to top it with the unheard-of salary of $7,500 (or roughly $176,000 today). Wigmore failed, but Pound was soon off to Harvard. In 1910 he accepted a chair at the Harvard Law School, and in 1916 he became its dean. As White aptly writes, “His rise was one of the most meteoric in the history of academic law.”
[This series of posts continues here.]