The “Sporting Theory of Justice” and the Mediation Profession: Roscoe Pound

By: Donald L. Swanson

The response of the [American Bar] Association to that 1976 re-examination of Pound’s criticism was immediate . . . One very important program was aimed at developing alternative methods for resolving disputes.

            –Chief Justice Warren E. Burger, February 12, 1984.

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Roscoe Pound, a young man from Nebraska

Roscoe Pound, a young man from Nebraska in 1906, became one of the great deans of the Harvard Law School.  As explained in this article, Chief Justice Warren Burger attributes the beginnings of the modern mediation profession to Roscoe Pound’s 1906 speech to the American Bar Association and a 1976 re-examination of that speech by that same Association.

Roscoe Pounds 1906 speech is titled, “The Causes of Popular Dissatisfaction with the Administration of Justice.”  A portion of the speech deals with “causes lying in the peculiarities of our Anglo-American legal system.”

Here are some of Pound’s observations on a “sporting theory of justice” that, undoubtedly, moved the American Bar Association, in 1976, to action and toward the beginning of today’s mediation profession:

Roscoe Pound’s Words . . .

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“Sporting theory of justice”

“The sporting theory of justice, the ‘instinct of giving the game fair play,’ as Professor Wigmore has put it, 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.  . . . With us, it is not merely in full acceptance, it has been developed and its collateral possibilities have been cultivated to the furthest extent.  . . .

The idea that procedure must of necessity be wholly contentious 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 creates vested rights in errors of procedure, of the benefit whereof parties are not to be deprived.  The inquiry is not, What do substantive law and justice require?  Instead, the inquiry is: Have the rules of the game been carried out strictly?”

Still Ring True Today.

Roscoe Pound’s observations, in his 1906 speech, still have a ring of truth today—and continue pushing parties toward mediation.  For example:

Uncertainty, delay and expense, and above all the injustice of deciding cases upon points of practice, which are the mere etiquette of justice, direct results of the organization of our courts and the backwardness of our procedure, have created a deep-seated desire to keep out of court, right or wrong, on the part of every sensible business man in the community.

And the conclusion of Roscoe Pound’s speech still provide hope in today’s world:

We may look forward confidently to deliverance from the sporting theory of justice; we may look forward to a near future when our courts will be swift and certain agents of justice, whose decisions will be acquiesced in and respected by all.

Conclusion

It seems that the “sporting theory of justice” decried by Roscoe Pound in 1906 is still with us today – more than a century later.

And perhaps it is the persistence of this theory that accounts for the prominence of mediation today as a primary dispute resolution tool throughout our entire judicial system.

 

 

 

 

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