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
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: Suggested Citation