Search Results

Case Study 2 explores the tenure of famed American law professor Roscoe Pound as a legal adviser to the Guomindang during the late 1940s. In microcosm, Pound’s time in China before and after 1949 illustrates both the limitations the export presumption placed on American understanding of Chinese legal reform and Pound’s own transformation from committed comparativist to foreign legal reformer. Pound, like America more broadly, never admitted his mistakes in China. Rather, he turned to a strident anti-communism when explaining his failures, and then worked to tie export work to the rising tide of anti-communist American legal nationalism. While he was personally unaware of such, Pound’s work also shows how his secularized reform work emulated the classic missionary mindset and its concomitant conundrums.

Events in New York proved to be a dress rehearsal for the Walter-Logan bill, introduced in Congress in 1939 and vetoed by FDR late the following year. The American Bar Association had developed the bill to meet the concerns of lawyers who practiced before the federal government, but it attracted the support of others for diverse reasons. Roscoe Pound, forced from the Harvard Law School deanship in 1936, accused Jerome Frank, James Landis, and other legal realists of advocating “administrative absolutism.” In fact, Pound and his opponents agreed more about the administrative state than they let on; leadership of legal education was the real gravamen. In Congress, a conservative coalition of Democrats and Republicans seized upon the bill to punish the National Labor Relations Board and the Securities and Exchange Commission, at the behest of corporate contributors and from their own desire to harry the New Deal’s “janizaries.”

On February 10, 1917, Pauline Agassiz Shaw died at the age of seventy-six. Shaw's death brought sorrow and anxiety to Mary P. Follett and her partner Isabella Louisa Briggs. Shaw had provided seed money for many of Follett's social and civic projects, and her loss came at a time when Follett was trying to raise funds for the new National Community Centers Association (NCCA). In the spring of 1917, Follett decided to write a chronicle of the community centers movement and raised funds to support the NCCA's contributions to the war effort. The NCCA was one of many social and civic groups enthusiastically supporting the United States's mobilization for World War I, such as assisting the Council of National Defense in gaining direct access to the nation's educators. Meanwhile, after an initial misunderstanding with Follett, Roscoe Pound, dean of the Harvard Law School, helped her finish her book The New State, published in 1918.

The chapter explores how the shift from retributive to preventive justice affected the constitutional balance between judicial and administrative sentencing powers. After analysing the Spanish law framed by De Asúa on the dangerousness without crime, it compares the European solution of the measures of security with the US indeterminate sentence system, stressing the European attitude in favour of judicial sentencing jurisdiction. It examines the growth of penal administrative powers in the United States, focusing on the shift from legal rules to legal standards in sentencing discussed by Roscoe Pound, Felix Frankfurter, and Sheldon Glueck, and then describes the hybrid system of penal/administrative security measures provided for by the 1930 Italian Fascist Code. The chapter finally investigates the different positions on the powers of the judge in the sentencing phase debated at the Berlin Congress in 1930 and the ambiguities of the dual-track system.

The chapter examines the causes of the formation of two different penological identities in Europe and the United States and their characteristics, focusing on the distinction between US pragmatism and European doctrinarism. It analyses the foundation of the International Union of Penal Law, the American Institute of Criminal Law and Criminology, the International Prison and Penitentiary Congresses, and other congresses and publications to show how the peno-criminological reform movement was driven by a renewed interest in legal comparison. The chapter also investigates how penal reformers and criminologists such as Liszt, Saleilles, Cuche, Pound, Ferri, and other adherents to the Italian Positivist School made a different use of legal history to uphold and legitimize their new proposals.

The chapter provides an analysis of the key role of the principle of legality for penal liberalism and of its fragmentation as a consequence of criminological theories and the individualization of punishment. The rise of the theory of social defence has constitutional consequences on the sentencing authorities, because a different distribution of powers between judiciary, legislative, and executive is needed and a broader administrative discretion is required. The chapter analyses how the dissatisfaction with the administration of criminal justice in the United States led to a strong criticism of penal individualism and its judicial safeguards, and fostered the bifurcation of criminal trial into two phases: the guilt phase (judicial and with all of the traditional guarantees) and the sentencing phase (delegated to administrative bodies). It finally examines the inconsistencies of US peno-correctional treatment, together with the reaction against the fallacies of administrative justice and the proposal of a sentencing ‘disposition tribunal’.