Over a century ago, in 1906, law professor Roscoe Pound outlined “The Causes of Popular Dissatisfaction with the Administration of Justice” in a speech to the American Bar Association. After conceding “dissatisfaction with the administration of justice is as old as law,” Pound went on to perform a “diagnosis” of the “more than the normal amount of dissatisfaction with the present-day administration of justice in America.”
One particularly “potent source of irritation” was “our American exaggerations of the common law contentious procedure,” which produced a bizarre, unjust, and “sporting” sense of justice:
It grants new trials because by inability to procure a bill of exceptions a party has lost the chance to play another inning in the game 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? If any material infraction is discovered, just as the football rules put back the offending team five or ten or fifteen yards, as the case may be, our sporting theory of justice awards new trials, or reverses judgments, or sustains demurrers in the interest of regular play.
Pound’s discussion about the inherent lawlessness of a “sporting” justice system — one that over-emphasizes procedural “correctness” and judicial “umpiring” as if justice were a game — feels like it was written in our time, not over a hundred years ago: Continue Reading The Unjust “Sporting Theory Of Justice” In Federal Courts