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November 01, 2013

The ABA Judicial Division Turns 100

By Peter M. Koelling

This year marks the 100th anniversary of the Judicial Division, which was formed by the American Bar Association in September 1913. This year is also the centennial of the American Judicature Society (AJS). It is not merely a coincidence that these two entities were formed at approximately the same time. The needs of the justice system and the profession induced the creation of the Division, but there were two important catalytic acts that spurred action.

The first was a speech by Roscoe Pound, then dean of the School of Law at the University of Nebraska and later to become dean of Harvard Law School. The speech was given in 1906. Entitled “The Causes of Popular Dissatisfaction with the Administration of Justice,” it identified problems with both the bench and bar and our system of justice. It was a wakeup call and not especially well received by the established leaders of the bar. In fact, a motion to print 4,000 copies of the speech for distribution was withdrawn in face of this sentiment. But the speech had an impact. Dean Pound noted that people have complained about the administration of justice since law and lawyers have existed. However, the level of dissatisfaction he was hearing had gone beyond mere complaining and had a basis in fact. He believed that the people’s discontent was the result of how the mechanical application of rules can impact a case despite its facts. It was also the result of the gap that is often found between the present state of the law and current public opinion.

Dissatisfaction also arose from the fact that people do not fully understand the operation and authority of the courts. With regard to the American system of justice, he argued that the adversarial nature of the civil proceedings had fueled the perception that litigation was merely a game and not the pursuit of justice. He also pointed to the lack of codified laws and rules that made the law difficult to access through case law alone. The most important cause of dissatisfaction was that the “system of courts is archaic and our procedure behind the time.” He strongly asserted the need for comprehensive reform of the structure of court systems and procedures.

Of course, the Judicial Division was not formed in 1907. Such criticism is not often readily accepted, and it took a few years for these ideas to brew and ferment. The realization that Dean Pound’s assessment may have had a basis in truth took some time to develop and even more to begin to spur steps toward reform. The catalyst for taking steps came from a young lawyer in Michigan, Herbert Harley, who wrote “A Circular Letter Concerning the Administration of Justice.” The letter was sent to over 250 prominent lawyers, judges, academics, doctors, and business leaders including the then-current and the next two presidents of the ABA. He picked up where Dean Pound had left off and further developed the theories for dissatisfaction. He recognized that there was wide disagreement as to both the cause of the problem and the solution.

In 1911, Frederick Taylor had introduced the concept of “scientific management” and Harley clearly thought those concepts should be used; it was necessary to make a scientific analysis of the problems with our system of justice. Unless the problems could be accurately diagnosed, the solutions would not be effective. He also asserted that the bar should not be tinkering around the edges but must create a comprehensive plan for reform. The plan should include the rules of procedure and practice, but more importantly it should address the structure of the court system, judicial selection, tenure and compensation, and the independence of the judiciary.

The letter had its intended effect. The next year both the Judicial Section of the ABA and the AJS were formed. AJS took a broader public interest approach and creation of the Judicial Section reflected the approach within the legal profession. The Judicial Section was “established for conference, discussion, and interchange of ideas as to the duties and responsibilities of the judiciary,” a charge the Judicial Division undertakes to this day. The Judicial Division is still focused on many of the same issues brought before the ABA by Dean Roscoe Pound and Herbert Harley a century ago: judicial selection, the compensation of judges, the structure of our court systems, their jurisdiction and administrative and financial support, and the independence of the judiciary. These and similar issues will likely be Judicial Division concerns for another century.