The law school curriculum is now full of interdisciplinary subjects. Law and economics may dominate but almost other every social science is well represented. These perspectives offer innovative methods to analyze the effects of law and inform the content of legal reforms. But long before the rise of this alphabet soup of interdisciplinarity, law and history were a well-established combination, providing an important part of legal education and an essential element of legal science. The early salience of legal history for the study of law is all the more reason to welcome the splendid volume, Law’s History: American Legal Thought and…
Roscoe Pound and the Progressive Path Less Traveled
Given his significance in 20th century American legal thought, it is stunning that Roscoe Pound is not more widely recognized by contemporary legal scholars. He was the Dean of Harvard Law School, one of the foremost legal intellectuals of the 20th century, and his advocacy of “sociological jurisprudence” had a profound effect on the course of American jurisprudence. Yet he is not widely studied in law schools today. One important reason for his neglect is that Pound’s views are extraordinarily difficult to discern. He was not always a clear writer, and the subtleties of his thought are often difficult to decipher.
Scholars have long been perplexed about Pound’s legacy. Most have simply concluded that Pound’s political views changed over time – that he moved from his early progressivism to the right, a tendency which became especially pronounced after the New Deal.
The excesses of the modern administrative state are becoming a central issue in contemporary American political debates. From the National Labor Relations Board’s intervention in Boeing’s decision to move some of its operations to South Carolina, to the Affordable Care Act’s delegation of massive power to the Independent Payment Advisory Board (IPAB) to reduce Medicare spending, Americans are increasingly at the mercy of institutions that have a tenuous connection to the Founders’ constitutional system.
The rise of these bureaucratic institutions has occurred over the last century, and controversies over the legitimacy of the administrative state have sprung up periodically throughout the last hundred years. During the New Deal, the issue of the administrative state’s legitimacy was raised primarily by the bar. The bench and the bar were the most dramatically affected by the delegation of power to administrative agencies, and they fought most vigorously against it.
One of the prominent lawyers who fought the New Deal’s expansion of administrative power was the progressive legal theorist Roscoe Pound. Many friends of Liberty Fund may not be aware that Pierre Goodrich, the founder of Liberty Fund, was a graduate of Harvard Law School, and he acknowledged his debt to Pound who was one of his teachers at Harvard. Goodrich identified Pound as one of the formative influences on his own legal and political philosophy. In a nod to Pound’s influence on Goodrich, Liberty Fund reprints one of Pound’s many books, The Ideal Element in Law.
Pound’s influence on the founder of Liberty Fund might seem startling at first to those who know Pound as one of the foremost progressive legal theorists, though it might seem rather unsurprising to those who know Pound as one of the staunchest critics of the New Deal. Pound himself has long been a mysterious figure to scholars because he was a prominent progressive yet virulently opposed to the New Deal. How can this be possible? Isn’t the New Deal a natural outgrowth of progressive political thought?
Pound’s departure from the New Deal was not prompted by a conversion to conservatism but a sense that the New Deal was a betrayal of progressivism itself. In particular, Pound objected to the dramatic expansion of unbridled administrative discretion under Roosevelt, and feared that the progressive ends of a more active federal government operating for a collective purpose would be thwarted by administrative absolutism.