Roscoe Pound Research Articles

How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective

Part I of this Article first looks at the major components of common law and equity procedure, and then examines the domination of an equity mentality in the Federal Rules. Part II explores the American procedural experience before the twentieth century, and demonstrates how David Dudley Field and his 1848 New York Code were tied to a common law procedural outlook. Part III concentrates on Roscoe Pound (who initiated the twentieth century procedural reform effort), Thomas Shelton (who led the American Bar Association Enabling Act Movement), and Charles Clark (the major draftsman of the Federal Rules). Through understanding these men and the interests they represented, one can see that we did not stumble into an equity system; people with identifiable agendas wanted it. Part IV examines how the Federal Rules advocate rejected methods that might have helped balance and control their equity procedure, why the methods of confining the system failed, and why current approaches to redress the imbalance of an equity-dominated system will also fail. It concludes with a summary of fundamental constraints rejected by the advocates of uniform federal rules of procedure. My goal is to rescue some quite profound voices from the wilderness.

The Supreme Court of Judicature of Colonial New York: Civil Practice in Transition, 1691–1760

Many legal scholars consider the colonial period irrelevant to the subsequent history of American law. In 1936 Roscoe Pound defined the ‘formative era’ in American law as the post-revolutionary era, and legal historians have been bound by that periodization ever since. More recently, Grant Gilmore, in his book The Ages of American Law, began his first age, the ‘age of discovery’, at approximately 1800; Gilmore claimed that American lawyers had the opportunity at that time to create an American law essentially from scratch. Morton J. Horwitz further strengthened the reigning assumptions regarding the unimportance of the legal history of colonial America in his influential book The Transformation of American Law 1780–1860. In Horwitz's view, what marks the American legal system is the instrumental use of law to promote social change, particularly to further commercial interests, and this aspect of the law did not exist until the early nineteenth century.

American Academy Expands Policy Goals

Just off a street that divides the gritty town of Somerville, Mass., from the equally gritty but starrier Cambridge is a tastefully modernistic building known to its owners as the House. The House is the headquarters of the 2500-member American Academy of Arts & Sciences, a den of the two cultures if there ever was one. Its ethers waft the ambrosias of intellect and attainment. John Adams, John Quincy Adams, Nathaniel Bowditch, Alexander Agassiz, and more modern personages as Roscoe Pound, Talcott Parsons, Harvey Brooks, and Victor F. Weisskopf all were its presidents. The academy was founded in 1780 by John Adams to offset Benjamin Franklin's older Philosophical Society in Philadelphia. Adams never much liked Franklin, and as the academy's current executive officer John Voss tells it, Adams was so sick and tired of hearing Franklin brag about his society that he set up his own academy. Today the richer Philosophical Society pretty much keeps ...

Graduate Education in International Affairs: A Discipline in Transition

GRADUATE EDUCATION IN____ INTERNATIONAL AFFAIRS: A DISCIPLINE IN TRANSITION Roger S. Leeds HE EFFECTIVENESS OF AMERICAN FOREIGN POLICY and the competitiveness of American business in an era of global interdependence hinge on the quality of practitioners occupying positions of influence and leadership in the international arena. Many of these individuals have been trained in five select graduate schools of international relations: the Fletcher School of Law and Diplomacy at Tufts University, the School of Public and International Affairs (SIA) at Columbia, the Woodrow Wilson School of Public and International Affairs at Princeton, the Georgetown University School of Foreign Service, and the Johns Hopkins School of Advanced International Studies (SAIS). Given the influence of these schools' graduates in setting corporate and public policy, it is no exaggeration to suggest that the performance of these institutions is of some consequence to the nation at large. It is therefore legitimate to question how well this small community of graduate schools is fulfilling its mandate, and whether adjustments could be made to improve their performance. The issue is timely because some of these highly competitive schools are being squeezed by financial pressures and academic changes that were unforeseen a few years ago. An increasingly familiar reproach from the students themselves is that too many in their ranks pay too much money in search of too few acceptable job opportunities in a field that has been transformed fundamentally in the past twenty years. Other danger signals are also evident. After decades of steady growth in the number of applicants for admission, some of the schools saw a levelling off of applications in 1985. The career placement officers at the larger schools are also Roger S. Leeds is a senior staff member of the International Finance Corporation , an affiliate of the World Bank. He is also a professorial lecturer in international finance at SAIS, where he received his M.A. and Ph.D. 205 206 SAIS REVIEW concerned by the high numbers of graduates still unemployed months after receiving their diplomas. Unless these institutions can sustain their reputations as the primary advanced training ground for international careers, they will falter, and some may not survive. BY THE MID- 1940s IT WAS APPARENT that the conduct of relations between nations and basic power relationships had been fundamentally transformed. Political coalitions were shifting. Old adversaries became new allies and the United States emerged as a superpower, rendering its isolationist tradition obsolete. Trade and investment patterns provided convincing evidence of an unprecedented degree of economic interdependence . Commercial air transportation and sophisticated international communications networks made the world seem to grow smaller. It was a dynamic era in international relations, which demanded a new generation of professionals trained in the tools of internationalism. It was during this period that a number of major private universities located along the Eastern corridor initiated graduate programs in the broad discipline of international affairs. The new programs emerged in response to initiatives by prominent academicians and statesmen who perceived a gap in the range of graduate education available. Among the founders of SAIS were two future secretaries of state, Christian Herter and Dean Acheson, and arms control negotiator Paul Nitze; at Tufts, A. Lawrence Lowell and Roscoe Pound, respectively president of Harvard and dean of the law school, were instrumental in launching the Fletcher School. These visionaries believed that the advanced study of international affairs was too heavily focused on abstract political and economic theory and was divorced from the practical concerns of policymakers. They perceived a need in the United States to provide a rigorous, practical international education for a select group of young men and women of promise. Thus, the discipline of "international relations" entered the lexicon of graduate education and became recognized as an appropriate subject of academic endeavor. Soon, interdisciplinary programs in the study of the political, economic, and social relations between nations were being established at major academic institutions. Although each of these new schools was started at a different time and each claimed to be unique, there were common points of departure. They were very small at the outset, seeking to attract a limited number of students from elite social and academic backgrounds. In 1949, for example , SAIS...

State Courts and Protective Legislation during the Progressive Era: A Reevaluation

For a number of years, courts during the Progressive Era have been characterized as enemies of reform. Judges, according to that view, read their own conservative biases into law in order to nullify child labor legislation, efforts to establish maximum hours, minimum wages, and workmen's compensation, and revisions of traditional rules governing employer liability in job-related accidents. Theodore Roosevelt, Gilbert Roe, Roscoe Pound, and others were only a few voices in the chorus that condemned courts for their allegedly reactionary attitudes toward social legislation. Louis D. Brandeis, for example, on the eve of his nomination to the United States Supreme Court, charged judges with being blind to the great social and economic changes of the past halfcentury and with erecting their own prejudices into legal barriers to reform. ' Recent studies of the United States Supreme Court have led to a revision of that institution's image as a thoroughgoing enemy of reform. Despite its decisions in such cases as Lochner v. New York, Adair v. United States, and Coppage v. Kansas, which have often been portrayed as epitomizing its opposition to protective legislation, the Court in fact upheld the vast majority of protective statutes it reviewed.2 A similar analysis needs to be done for state courts,

Expert Witness Testimony

To Editor.— In editorial, Expert Witness Whom? Dr Lundberg 1 suggests expert witnesses truth rather than expert witness for prosecution or for defense. He alludes to inherent power of court to appoint expert witnesses. There is an underlying assumption in editorial that somehow, somewhere, there is an unbiased expert witness who can reveal What seems to be overlooked is that different expert witnesses, even if completely unbiased, have a different view of the truth. The adversary system has a way of arriving at the truth by allowing all parties to present testimony—subject to cross-examination—to trier of fact, usually a jury, who then decides what is the truth purpose of resolving dispute between parties. Several years ago, Roscoe Pound said that adversary system turns expert witnesses into advocates, pure and simple. Nevertheless,

The Legal Fictions of Herman Melville and Lemuel Shaw

inherent qualities of literary language or rhetoric and, conversely, that a text's ambiguity can help us expose contradictions masked by an era's dominant ideology. (3) I try to prove my assertion by applying my method to Herman Melville's three most famous short works-Benito Cereno, Bartleby, Scrivener, and Bill Budd, Sailor-works dealing with law and lawyers and widely acknowledged as ambiguous.' I will base my critical inquiry into these stories on Melville's relationship with his father-in-law, Lemuel Shaw, who, while sitting as chief justice of Supreme Judicial Court of Massachusetts from 1830 to 1860, wrote some of most important opinions in what Roscoe Pound has called the formative era of American law.2

History Over Time

M ) ~Y love affair with history was the result of shared experience and observation in what has been the best of centuries and the worst of centuries. I was not quite six years old when in June i9io Theodore Roosevelt staged his dramatic return from his safari in Africa. My father hoisted me on his shoulders so that I could see the parade up Fifth Avenue. Later that afternoon I recall there was a violent hailstorm perhaps presaging stormy years ahead for T.R. and the nation he hoped once more to lead. As a high school student at Townsend Harris Hall, I marched down Fifth Avenue in i9i8 along with thousands for both the false armistice and the real one four days later. I was swept into history not only by the stirring events of the World War I years but by the imaginative pedagogy of two of my Townsend Harris Hall teachers, Herman Gray, later a professor of law at New York University Law School, and Austin Baxter Keep, then deep into his researches on the early libraries of colonial New York. My enthusiasm for history was sustained by several members of the faculty of City College, where I pursued my undergraduate studies-notably by Nelson P. Mead and J. Salwyn Schapiro. Mead had recently returned from Paris, where he had been a member of City College president Sidney Mezes's Inquiry at the peace conference, and he provided his students with an up-to-date, information-packed and highly systematic version of World War I, without the advantages afforded by hindsight. He was basically a colonial historian who had completed his doctorate at Columbia under Herbert L. Osgood, a profound scholar whose massive institutional history of the American colonies shaped study and teaching for a whole generation. From the Europeanist J. Salwyn Schapiro, I learned to appreciate intellectual and social history, the role played by ideology and isms. Remember, it was a generation when James Harvey Robinson and Charles A. Beard were very much in vogue, and historians were becoming increasingly aware of social and cultural concerns and somewhat less involved in the traditional political framework. If my undergraduate education contributed to my becoming something of a historical maverick for that time, it was in no small part due to the tutelage of Professor Morris Raphael Cohen, the eminent philosopher, whose course in the philosophy of law introduced me to my literary hero, Frederic William Maitland, as well as to a host of modern writers in European juristic thought and legal history. As an undergraduate I had already done enough reading in the sources for American colonial law to have recognized certain fallacies in Roscoe Pound's Spirit of the Common

Lost, Missing, or Found: Aubert's Quest for a Theory of Law for Welfare Society

A common feature of the majority of theoretically inclined sociology of law is that it is, whether explicitly or implicitly, developmental. Thus the founding fathers, Weber and Durkheim, were in their respective styles concerned to advance theories positing distinguishable stages of legal development. The distinctively character of these theories was expressed in the paramount concern to link the stages of legal development with distinctive features or properties of the social totalities; thus for the purposes of this discussion a theory would not count as a sociological theory of legal development unless this linkage to the wider social totality was present. The search for an adequate model of the stages of legal development is never some dispassionate scientific inquiry, despite the intellectual attraction that the discourse of value-free scientism has held for many sociologists. There is generally to be found a more engaged or involved motive underlying the theoretical enterprise. Commonly this expresses itself in an attempt to grapple with what are seen as being ambiguous or problematic features of the contemporary stage of legal development. Thus, for example, Weber grappled with the tension between the increasing formalism of legal rationality and the growing social and political demand for substantive justice. Durkheim sought the basis for social cohesion in a period in which law less embodied the collective morality of society but increasingly embodied the particularistic regulation of diverse social and economic relations. These concerns with the trajectory of modern law are not the monopoly of the sociology of law: writers as diverse as A. V. Dicey, Roscoe Pound, and Wolfgang Friedmann were substantially concerned with and sought to give theoretical expression to the contemporary developmental trend of the legal system. Generally it has been the case that these attempts to theorize the course of legal

Community Organizing, Client Involvement, and Poverty Law

Part of my own decision to formally study law stems from past experiences with the law (the police, the courts, the jails) first as a teen-aged black G.I. in the South before the passage of the Civil Rights and Voting Rights Acts of 1964 and 1965, later as a community organizer in the tumultuous Mississippi freedom movement, then still later as an inner city preacher-organizer in Chester, Pennsylvania, and North Philly where I had grown up. Lately I have come to know Roscoe Pound and torts and judicial review and the case method inter alia. But I met the law in a trash-poor shanty town in cottonbelt Oklahoma. He wore a big gun, called me Nigger, and put my black ass in jail for trying to sit down and eat inside a white restaurant. Up against Mississippi state highway patrolmen, county sheriffs, the Jackson city police, the FBI and the quasi-legal Ku Klux Klan, I learned that there can be light years between Supreme Court pronouncements and the fact of law as it is experienced by the millions of poor and minority peoples in the United States.This article can also be found at the Monthly Review website, where most recent articles are published in full.Click here to purchase a PDF version of this article at the Monthly Review website.

Comments on the History of Plea Bargaining

Criminal law in the early nineteenth century was based on the of Beccaria, Bentham, and other utilitarian philosophers. Because the primary goal of punishment was deterrence, sentences were to be determined according to the offense rather than the offender. By the end of the century a penology had emerged, based on a philosophy of individualized sanctions that sought to reform (later to rehabilitate) the offender. In an effort to make the punishment fit the individual a variety of new procedures were introduced, such as indeterminate sentences, prison classification systems, juvenile courts, different penalties for youthful offenders, and presentence investigations (Vasoli, 1965:405). Parole and probation also developed during this period; the latter evolved from the common law practice of suspending sentence into a more formal program involving probation officers who made written reports to the court, and supervised the convict's compliance with the restrictive conditions of probation. For example, California's probation law, Penal Code ? 1203, although enacted in 1872, was substantially rewritten in 1903 to create probation in its more modern form. Between 1903 and 1923 the statute was amended eight times to refine probation as an alternative in sentencing. Not everyone accepted these penal reforms, however, and public reaction in the 1920s called for greater severity in sentencing. Roscoe Pound noted unhappily that before these penal innovations could fully be implemented and experts

Roscoe Pound: Philosopher of Law. By David Wigdor. (Westport, Conn.: Greenwood Press, 1974. Pp. 356. $12.95.)

Roscoe Pound: Philosopher of Law. By David Wigdor. (Westport, Conn.: Greenwood Press, 1974. Pp. 356. $12.95.)

A Review of State Trial Courts as Bureaucracies: A Study in Judicial Management

Abstract It is an old story: the courts are behind in their work. What is wrong? A problem of management? This book opens with a passage from an address by Chief Justice Warren E. Burger of the United States Supreme Court delivered a few years ago at the annual meeting of the American Bar Association: “[T]oday, in the final third of this century, we are still trying to operate the courts with fundamentally the same basic methods, the same procedures and the same machinery that Roscoe Pound said were not good enough in 1906. In the supermarket age we are with few exceptions operating the courts with cracker-barrel, corner-grocer methods and equipment, vintage 1900. … More money and more judges alone is not the primary solution to the problem of the courts. Some of what is wrong is due to the failure to apply the techniques of modern business to the purely mechanical operation of the court—of modern record keeping and systems planning for handling the movement of the cases. Some is also due to antiquated and rigid procedures Which not only permit delay but encourage it.”

The Parameters for Analysis of Windfall Recoveries in the Corporate Setting

In 1903 when Dean Roscoe Pound, who was then Commissioner of the Supreme Court of Nebraska, decided that a corporation which was wholly owned by one stockholder could not sue the person from whom the present stockholder had purchased his stock, for mismanagement and waste allegedly committed before the purchase, he wrote: It is not the function of courts of equity to administer punishment. When one person has wronged another in a matter within its jurisdiction, equity will spare no effort to redress the person injured, and will not suffer the wrongdoer to escape restitution to such person through any device or technicality. But this is because of its desire to right wrongs, not because of a desire to punish all wrongdoers. If a wrongdoer deserves to be punished, it does not follow that others are to be enriched at his expense by a court of equity. A plaintiff must recover on the strength of his own case, not on the weakness of the defendant's case. It is his right, not the defendant's wrongdoing, that is the basis of recovery. When it is disclosed that he has no standing in equity, the degree of wrongdoing of the defendant will not avail him.

Classification of the rules of international law according to spheres of validity

Hans Kelsen is undoubtedly among the foremost jurists of this century. Roscoe Pound, himself not an insubstantial figure in the field, considered him “un questionably the leading jurist of the time”. Kelsen occupied himself in particular with three branches of law: constitutional law, legal philosophy, and international law.

Roscoe Pound: Philosopher of Law

Roscoe Pound: Philosopher of Law

Roscoe Pound: Philosopher of Law.

Roscoe Pound: Philosopher of Law.

Roscoe Pound: Philosopher of Law

Roscoe Pound: Philosopher of Law

Roscoe Pound: Philosopher of Law

Roscoe Pound: Philosopher of Law

Roscoe Pound and the Strategy of Professionalism

Roscoe Pound and the Strategy of Professionalism