Roscoe Pound and the Future of the Good Government Movement
22 Pages Posted: 30 Oct 2009
Date Written: 2007
In this, essay I revisit Roscoe Pound’s 1906 address to the American Bar Association. I first contextualize the Pound speech with an eye toward its role in inaugurating a good government movement spanning the twentieth century that sought to regulate the judiciary with explicit reference to preserving public trust and confidence in the courts. Second, I describe more recent developments growing out of the civil liberties movement that have put the future of the good government movement in doubt, by calling into question the constitutionality of state code of judicial conduct provisions that seek to promote public confidence in the courts by prohibiting judicial speech and association that create the appearance of impropriety or partiality. Third, I discuss the disqualification regime that some reformers have proposed as an antidote, wherein judges are permitted - and perhaps even encouraged - to speak their minds freely, as long as they disqualify themselves later from hearing cases in which their prior statements call their impartiality into question. I conclude that for a disqualification regime to be effective, we must return to the roots of Roscoe Pound’s good government movement and the informal norms that have long discouraged judges from publicly venting their spleens on every hot legal topic of the day. If the judiciary succeeds in conserving the longstanding norms that encourage judges to watch what they say and with whom they associate (even if they have a “right” to do otherwise), to the end of promoting public confidence in the courts - then disqualification is a viable means to remedy isolated deviations from the norm.
Keywords: Roscoe Pound, judicial disqualification, judicial recusal, judicial independence, rule of law, judicial speech, judicial accountability
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