Synthetic Readings of Roscoe Pound's Jurisprudence

Abstract

In this Article, Professor Lasser offers two distinct readings of Pound's comparative work. In the first, "generous" reading, he argues that the work of Roscoe Pound might well possess significant current potential for the discipline of American comparative law. As his famous exchange with Karl Llewellyn made abundantly clear, Pound was no friend of American legal realism. Given the prevalence of post-Realist perspectives in the American discipline of comparative law, Pound's work might offer an alternative methodology to that which has dominated American comparative law for at least the last thirty years. In particular, his work might offer a model of how to escape the typical American post-Realist prism which tends, almost as a matter of first principle, to define law in the Holmes/Llewellyn manner as "what the courts do in fact." Pound's comparative work, in other words, may offer a methodological alternative to American comparative law's tendency to approach law in a judge-centered manner, a tendency that obliterates the locus of the most basic differences between American and Continental European legal ideologies. In his second, "severe" reading, Professor Lasser argues that Pound's comparative analyses nonetheless fall into most of the pitfalls that Pound had himself identified and warned against. Faced with these two readings, Professor Lasser concludes that Pound's simultaneously promising and disappointing forms of comparativism should not be reconciled.*This is a draft submitted for advice and comments by my peers. It is not the final version of the article. Please send comments by e-mail to "lasserm@law.utah.edu".