Dean Pound's Dissatisfaction with the 'Sporting Theory of Justice': Where Are We a Hundred Years Later?

19 Pages Posted: 27 Aug 2009

Date Written: Summer 2007

Abstract

Procedural law in civil courts came in for a good deal of criticism in Dean Roscoe Pound’s 1906 speech on The Causes of Popular Dissatisfaction with the Administration of Justice. The system of courts, he said, “is archaic and our procedure behind the times.” The results are “[u]ncertainty, delay and expense, and above all, the injustice of deciding cases upon points of practice.” His assault on civil procedure was broad-brushed, and he hit the high point with his metaphor of the “sporting theory of justice,” which focused on undue adversariness and a system that rewarded gamesmanship. His critique of trials, juries, lawyers, and judges have been answered by some significant changes in the American legal system and altered social conditions, but they still have relevance and bite today. A hundred years later, Americans still consider litigation as something of a sport to watch, and trials are a major source of entertainment in movies and television. Nevertheless, the opportunities for sensationalism by lawyers have been reduced. His criticisms of the structure of the American legal system as to such matters as mechanical pleading rules, decisions based on points of practice, overuse of errors to deny finality, and jurisdictional divisions no longer carry the same significance but still provide a continuing insight into our legal system.

Keywords: Roscoe Pound, civil procedure, sporting theory of justice

JEL Classification: K41

Suggested Citation

Sherman, Edward F., Dean Pound's Dissatisfaction with the 'Sporting Theory of Justice': Where Are We a Hundred Years Later? (Summer 2007). South Texas Law Review, Vol. 48, 2007, Tulane Public Law Research Paper Series No. 07-21, Available at SSRN: https://ssrn.com/abstract=1439897

Edward F. Sherman (Contact Author)

Tulane University Law School ( email )

6329 Freret Street
New Orleans, LA 70118
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
247
Abstract Views
1,958
rank
154,765
PlumX Metrics