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81 Notre Dame L. Rev. 513 (2005-2006)


On August 29, 1906, a little known Nebraska lawyer climbed to the podium at the twenty-ninth American Bar Association convention in St. Paul, Minnesota, and commenced the most thoroughly successful revolution in American law. The lawyer was Roscoe Pound, and the title of his address was The Causes of Popular Dissatisfaction with the Administration of Justice. The speech was hardly popular in its own time. The ABA nearly refused to publish the remarks. Thirty-two years would pass before Pound's seeds fully flowered. Even today, many of Pound's criticisms of our adversarial civil justice system ring as true as the day that Pound spoke.

Pound's insight was to make procedure and substance work in an integrated fashion. The system for which Pound advocated was based on the classic model of equity, in which procedure (in theory) never got in the way of deciding cases on the merits. It was, as Pound said, "justice without law." Procedural rules should be general, discretionary guidelines placed into the hands of judges whose scientific administration would lead to the just determination of each case. Increased judicial involvement would constrain the excesses of the adversarial system. The substantive merits would determine the outcome.

The procedural system we developed in the twentieth century clung closely to the specifics of Pound's proposals. But we never fully integrated procedure and substance. Instead, we now have a system in which the importance of substance and procedure has been inverted. Substance now dominates procedure. The promise of Pound's integrated approach remains illusive.

Like Pound's speech, most of this Article will be critique-exploring the challenges that make our present procedural system unstable, rather than proposing a positive agenda for reform. The pressures that make our procedural system ripe for reimagining can be broken down and categorized in any of a number of fashions. For my purposes, I will package them into four categories that I describe in Part II: competitive pressures, political accountability, representativeness, and theorization. In Part III, I suggest several issues to which future reform efforts must pay special attention. But first, in Part I, I describe Pound's vision, the parts of the vision we kept, and the parts we forgot.


Reprinted with permission of the Notre Dame Law Review.


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