Can We Still Learn from Roscoe Pound? Just What Drives Public Dissatisfaction With the Administration of Justice?

September 27, 2013

govt blog 2Roscoe Pound served as Dean of Harvard Law School from 1916 to 1936.  Pound is one of the most cited legal scholars of the 20th Century.  He was a prolific writer who wrote scholarly tomes that few outside of academia would have interest in reading when he wrote them, and even fewer would have an interest in reading them today.  But, there was a practical side to Pound’s interests, too.  For example, his work includes a quirky little study he and Felix Frankfurter undertook of crime reporting in Cleveland newspapers for the month of January 1919.  Pound and Frankfurter found that in the first half of the month, the total amount of space given over to crime was 925 inches, in the second half it leapt to 6642 inches. This was in spite of the fact that the number of crimes reported had only increased from 345 to 363.  The newspaper coverage had a very real consequence.  Because the public believed Cleveland was in the middle of a crime epidemic, they demanded a response from the police, prosecutors and judges.  Pound and Frankfurter argued that the result of the misleading newspaper coverage greatly increased the likelihood of miscarriages of justice and led to some sentences more severe than the offenses warranted.

Does media-driven public opinion sound familiar today? Of course it does. The television networks dramatically increased the coverage of crime in their newscasts in the 1990s.  In 1990 and 1991, the three major networks aired an average of 557 crime stories per year in their evening newscasts.  For the remainder of the decade, they aired an average of 1,613 stories per year.  In 1995, the peak year, the networks presented 2,574 crime stories in their evening broadcasts.[1]  Just as Pound and Felix Frankfurter had written about Cleveland in 1919, James Hamilton’s study of 16,000 local news stories from fifty-seven stations in nineteen different markets found that the emphasis on crime in the local news does not depend on actual crime in the area.[2]  While the evidence of modern social scientists is conflicting, many believe that television’s overemphasis on crime stories does not lead to a better informed public, but instead contributes to potential miscarriages of justice at one extreme, and to heightened public support for an unnecessarily punitive justice system at the other extreme.

But it is Roscoe Pound’s 1906 speech, The Causes of Popular Dissatisfaction with the Administration of Justice, at the American Bar Association’s Annual Conference that is the most compelling of his works today. Regrettably over 100 years after giving this speech, much of what Pound saw in the justice system as problematic remains so.

Pound argued that one perennial source of dissatisfaction with the administration of justice was the popular assumption that the administration of justice is an easy task to which anyone is competent.  In Pound’s time, there was an element of truth to the belief that the administration of justice was easy, and anyone (or nearly anyone) would be competent to administer justice.  When Pound gave his speech, there was little to suggest — at least on the administrative side of courts — that court administration was particularly complex.  No school offered degrees in court administration.  The National Center for State Courts and other think-tanks did not exist.  The National Judicial College was not even a figment of anyone’s imagination.  Not a single state had a director of judicial education.  Indeed, there was pretty widespread use of judges in state courts who did not have law degrees.  For those judges who had law degrees, the norm was two years of law school.  Advocacy for “merit” selection of judges was clearly in its infancy.

But what about today?  Is the administration of justice such an easy task anyone might be competent? In the judicial community, the answer is a resounding “no.”  The technology requirement of e-filing and the massive amounts of documents filed everyday belabor that assertion.  And yet the political message that the administration of justice is easy and anyone might be competent to do it is just as alive as it was in 1906 when Pound gave his speech.  Senator Roman Hruska’s speech that he made to the Senate urging them to confirm the nomination of G. Harrold Carswell to the Supreme Court best illustrates just how prevalent that thought is.  Responding to criticism that Carswell had been a mediocre judge, Senator  Hruska claimed that: “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers.  They are entitled to a little representation, aren’t they, and a little chance?  We can’t have all Brandeises, Frankfurters and Cardozos.”

A second cause of the popular dissatisfaction with the administration of justice that Pound cited was “contentious procedure, which turns litigation into a game.  Pound argued that, “The sporting theory of justice . . . is so rooted in the profession in America that most of us take it for a fundamental legal tenet.  But it is probably only a survival of the days when a lawsuit was a fight between two clans in which change of venue had been taken to the forum.”

Pound argued that the procedure of his day “disfigures our judicial administration at every point. It leads the most conscientious judge to feel that he is merely to decide the contest, as counsel present it, according to the rules of the game, not to search independently for truth and justice. It leads counsel to forget that they are officers of the court and to deal with the rules of law and procedure exactly as the professional football coach with the rules of the sport. It leads to exertion to “get error into the record” rather than to dispose of the controversy finally and upon its merits. It turns witnesses, and especially expert witnesses, into partisans pure and simple.  It leads to sensational cross-examinations “to affect credit,” which have made the witness stand “the slaughter house of reputations.”  It prevents the trial court from restraining the bullying of witnesses and creates a general dislike, if not fear, of the witness function which impairs the administration of justice. It keeps alive the unfortunate exchequer rule, dead in the country of its origin, according to which errors in the admission or rejection of evidence are presumed to be prejudicial and hence demand a new trial.”  Pound concluded that the effect of our exaggerated contentious procedure is not only to irritate parties, witnesses, and jurors in particular cases, but to give to the whole community a false notion of the purpose and end of law.

What a good teacher like Pound can do is to provoke students to think and reflect.  While the media of our time surely has some responsibility for distorted perception of crime and the justice system, do lawyers and judges effectively communicate to the public what the real challenges that face us are?  Or is the attitude “the media is a curse we live with or tolerate?”  If the public continues to believe that the administration of justice is simple and easy, is that the result of lawyers and judges not being effective in our responsibility to educate?  Waiting until sequestration now threatens the destruction of the federal defender system and some federal courts.  Timidity in speaking out publicly about the challenges facing courts may have been the traditional approach of federal court leaders, but was it right?  Far too many state courts are not adequately financed and infinitely far too many people wait too long for their cases to be resolved.  Some of that can be attributed to the economy, but a lot of it is because lawyers and judges failed to effectively address the popular causes of dissatisfaction with the administration of justice.  Simply put, we have been complacent.  And finally, is the view of the sporting theory of justice so deeply engrained in the legal profession that it explains much of what is wrong with the administration of justice?  So perhaps 60 years after his death we can still learn from Roscoe Pound.

[1] See Center for Media and Public Affairs, CMPA Factoids: Crime Coverage in TV News Data, http://web.archive.orgweb/20010111075900/


[2] James T. Hamilton, Channeling Violence: The Economic Market For Violent Television Programs