roscoe pound and jurisprudence and 1903 and nebraska and harvard law school

The purpose of this essay is to provide a biographical sketch of Pound's life until the penning of "Mechanical Jurisprudence" in 1908. You know by now how important I think a person's intellectual and familial background is in shaping his/her approach to law..

Early Days (1870-88)

Pound would, in his maturity, become the longest-serving and most prolific Dean in the history of Harvard Law School. A complete listing of his works, done shortly after his death, was 200 pages in length (though I can't vouch for how many articles or actual pages this represents). As with many of the people we have studied in this class, Pound was extremely smart, well-educated and worked extremely hard for an extremely long time. His family moved to NE from Western NY in 1866, and he was born in Lincoln in 1870, about when the first Transcontinental Railroad went through NE. His father was a local judge and his mother was a teacher, and they taught him and his siblings at home--Greek, Latin, German, science and other important subjects. Pound, therefore, was a product of educated circumstances. He entered the fledging U of NE in 1884 (only 266 students at the time), and graduated with a degee in botany in 1888. He always credited Dr. Charles Bessey, professor of botany at the university, with being one of his favorite teachers. He stayed around NE for the next academic year, earning a master's degree in botany and publishing several articles, such as "Notes on the Fungi of Economic Interest Observed in Lancaster County, NE, During the Summer of 1889." Riveting reading, I suppose.

In 1889 his father decided (and Pound said in a 1963 oral history interview that that was simply the way it was in those days) that his son ought to study law. So he gave him copies of Blackstone and Walker (American Law) which the younger Pound devoured but didn't like at all. His father decided that his son was correct and that he therefore needed to get some "up to date" legal education, and therefore sent him to Harvard. Pound tells about the experience of being a student there in 1889-90, and I will distribute some of the transcript of his oral history interview from 1963 on that subject in class. This information is derived from 78 HLR 7 (1964).

Law and Botany, Together

Pound left Harvard in 1890, after only one year, but this was enough to qualify him for the NE bar, and he became a member. The author of the 1964 article concludes:

"Before he was twenty, he had there (at Harvard) been able to measure his own intellectual powers against those of the then greatest American legal scholars. Roscoe Pound was acute and sophisticated...He must have seen his own capabilities. One doubts that Harvard "taught" him anything he could not have got from books. He had already learned thoroughness in the NE laboratory. At Harvard he acquired an enthusiasm for the law that rivaled, and then outran, his interest in botany" (13).

So he started a law practice in NE but still was interested in botany. He was selected in 1892 to be the director in a state survey of plant life. Five years later he published the Phytogeography of Nebraska, a dissertation that earned him a Ph. D. in botany. In addition he was trying jury cases all over the state (possibly while he was collecting plant samples) and arguing appeals in state and federal courts. In 1899 he became an assistant professor of law at the newly-opened U of NE law school. In 1901, in order to relieve docket congestion in the state Supreme Court, the NE legislature appointed nine commissioners (among whom was Pound) to help hear cases and dispose of the docket. This he did in two years, and in 1903 was named Dean of the U of NE law school.

By 1903, however, his sights were set on law and he published in this year the first edition of his Outlines of Lectures on Jurisprudence. He explored the development of the conception and defintion of law from Grotius to Kant and beyond, examining also such figures as Montesquieu, Hobbes, Burlamaqui, Rousseau, Savigny, and Ihering. His method is very "Langdellian" or "scientific," ordering categories and terms according to a scientific nomenclature. What was evident in his first published book in law, however, was his deep indebtedness to German modes of thinking (more below). This would also lie behind some of his assumptions and methods in "Mechanical Jurisprudence" (1908).

Moving East, Deciding on a Method

He delivered a lecture to the ABA in 1906 in St. Paul on what he called the causes of dissatisfaction with American justice (we can "hear" that tone also in "Mechanical Jurisprudence"). One of his auditors was the most significant figure in the law of evidence, John Henry Wigmore of Northwestern Law School. Wigmore invited Pound to join the Northwestern faculty, which he did in 1907. However, he annoyed Wigmore by moving to the University of Chicago in 1909 and then, he ticked off the entire Midwest by moving to Harvard as the Story Professor in 1910. By this time he was 40 and had decided on his approach to law.

He was committed to moving the study of law and jurisprudence away from the method of deduction from predetermined conceptions. Calling this "conceptualism," Pound sought to adjust principles and doctrines of law to the realities of the human condition. Rather than looking at law as a logical enterprise, he sought to put the human factor as central to legal development. In doing this he was showing his similarity to Holmes; however, Pound would always be much more interested in applying sociological method to the study of law than was Holmes. Holmes was basically a legal historian who "discovered" as he studied that law developed by means of "social adjustment"-i.e., the process of clashes of interest among various groups. But Pound, being so learned in German social thought, and being more of an academician than Holmes (who was then on the US Supreme Court), wanted to extract wisdom from German social sicence to apply to American law.

I will conclude with a quotation from his bewilderingly learned articles on "Sociological Jurisprudence" from 1911-12 in which he tried to divide the field of jurisprudence with a taxonomical minuteness that only a botanist could truly appreciate. But let's not miss his central point: law must leave "conceptions" and open itself up to social realities of the modern world.

"It has been felt for some time that the entire separation of jurisprudence from the other social sciences, the leaving of it to itself on the one hand and the conviction of its self-sufficiency on the other hand, was not merely unfortunate for the science of law on general considerations, in that it necessitated a narrow and partial view but was in large part to be charged with the backwardness of law in meeting social ends, the tardiness of lawyers in admitting or even perceiving such ends, and the gulf between legal thought and popular thought on matters of social reform. Not a little of the world-wide discontent with our present legal order is due to modes of juristic thought and juridical method which result from want of 'team-work' between jurisprudence and the other social sciences" (25 HLR 489, 510).

Conclusion

By ending with this quotation we see that Pound, as he now was launching his legal career in the East, where he would stay for the rest of his very long life, would focus increasing attention on jurisprudence and the connection of jurisprudence with the growing influence of the social sciences in America. This method made him a first generation "legal realist," but the story of legal realism is for another day.

1416