Tuesday, March 16, 2010

Pound at Sea

Long-time readers of the blog will recall my series of posts on Roscoe Pound and the administrative state. An essay based on them is still forthcoming, but, in the interim, here is a previously unremarked upon source on the Harvard law dean.

After stepping down from the deanship in the fall of 1936, Pound treated himself and his second wife Lucy to a round-the-world cruise. As it happened, his ship left San Francisco on February 5, 1937, the very day Franklin D. Roosevelt announced his plan to “pack” the U.S. Supreme Court by appointing one new justice for every sitting member of the Court over the age of seventy. Thanks to the New York Times, we know Pound’s view of the Court-packing plan when he returned to the United States on August 31. It was “one of the most outrageous things that ever occurred in American legal history,” he fumed at dockside. But I wondered what his initial reaction had been. Seeing from his diary that Pound had addressed the Honolulu Bar Association, I asked my ace research assistant, Owen A McGillivray (Georgetown Law 2010) to see if he could locate a newspaper account of Pound’s remarks. He could and he did.

“FDR's Court Plan 'Bluff' and Also 'Stuff,' Says Former Harvard Law Dean,” Honolulu Star-Bulletin, February 10, 1937, 1, 9

Roscoe Pound, who retired last year as dean of the Harvard law school, today described President Roosevelt's proposed judiciary reform program as "just a big bluff."

Dean and Mrs. Pound arrived today on the Asama Maru en route to the Orient on a world tour. The jovial dean, internationally recognized as an authority on jurisprudence, said: "It looks to me like just a big bluff."

"This talk about forcing retirement of justices over 70 is stuff, just plain stuff.

"Some of the greatest judges who have ever sat on the supreme court bench have been over 70."

Dean Pound said wireless dispatches received aboard the Asama, which sailed from San Francisco prior to announcement of the president's proposal, carried only a brief summary of the suggested reforms. "I'm not acquainted with all details of the proposal," the dean said, "but it looks like a grandstand play."

"Practically all lawyers are agreed that some reform and modernization of court procedure should be effected.

"But a reform of procedure only is not sensational enough for the president to drop in the lap of congress."

Addressing the Honolulu bar association at the Alexander Young hotel this noon, he said that during every period of economic and political crisis attempts have been made to change the legal machinery. "But," he said, "men don't lose the accumulated experience of adjusting human relations."

He reviewed the history of law from Anglo-Saxon times to the present and showed how successive eras of changed attitudes and interpretations of the function of law have inevitably reverted to basic principles. Dean Pound said the current era of arbitration and collective bargaining probably will necessitate an adjustment of laws which make employers responsible for acts of their employees.

Dean and Mrs. Pound were met at the pier this morning by many local friends and representatives of the local bar association. He served as dean of the Harvard law school from 1916 to 1936, retiring last year. He has honorary degrees from a dozen American and European universities. He is also an authority on botany and is a member of several distinguished foreign scientific academies. He is a Republican and served on President Hoover's national committee on law observance and enforcement in 1929. Dean Pound was in Honolulu in July and August, 1935, with other members of the American Bar Association.

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