Pound Conferences

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THE HISTORY AND LEGACY OF

THE POUND CONFERENCES
Lara Traum* and Brian Farkas**
I. INTRODUCTION
When the Constitution was drafted, the Framers disagreed as

to the process by which it could, or should, be amended.1 Should
the document created in 1787 last forever, intact? Or might it
evolve over time? Different Framers approached this question dif-
ferently. Thomas Jefferson was perhaps the most forceful advocate
for a process permitting amendment. Indeed, Jefferson argued that
the Constitution should be essentially scrapped and rewritten by
each new generation. “Some men look at constitutions with sancti-
monious reverence, and deem them . . . too sacred to be touched,”
he wrote. “They ascribe to the men of the preceding age a wisdom
more than human . . . . Let us not weakly believe that one genera-
tion is not as capable as another of taking care of itself . . . . Each
generation . . . [must] choose for itself the form of government it
believes most promotive of its own happiness.”2 Jefferson believed
that, for government to remain representative of the people, it
needed constant reexamination—self-conscious, purposeful,
mandatory, and careful reexamination.
* Lara Traum is an attorney and mediator at the Law Firm and Mediation Practice of Alla
Roytberg, P.C. . She received her B.A. from New York University and her J.D. from the Benja-
min N. Cardozo School of Law. Lara was the Editor-in-Chief of Volume 17 of the Cardozo
Journal of Conflict Resolution. Lara has written academically on matters including religious pre-
nuptial mediation, alternatives to elder care, and preventive lawyering. Lara thanks Brian Farkas
for partnering with her at this Symposium, and is grateful to Professor Lela Love for continuing
to inspire and encourage so many members of the alternative dispute resolution community.
** Brian Farkas is an attorney at Goetz Fitzpatrick LLP and an Adjunct Professor of Law at
Brooklyn Law School. He received his B.A. from Vassar College, and his J.D. from the Benja-
min N. Cardozo School of Law. Brian was the Editor-in-Chief of Volume 14 of the Cardozo
Journal of Conflict Resolution. He is deeply grateful to Professor Lela Love. In addition to being
a gifted teacher and dedicated mentor, she has inspired decades of lawyers to see themselves as
problem-solvers. She has created an intergenerational army of dispute resolution enthusiasts
who continue to work together for years after their graduations—a fact demonstrated by this
very article.
1 Letter from Thomas Jefferson to James Madison (1789). ME 7:459, Papers 15:396.
2 Letter from Thomas Jefferson to Samuel Kercheval (July 12, 1816) (reprinted in THE
PORTABLE THOMAS JEFFERSON 558–59 (1975)). See generally, Geoffrey R. Stone, Precedent, the
Amendment Process, and Evolution in Constitutional Doctrine, 11 HARV. J.L. & PUB. POL’Y 67
(1988).
677
Electronic copy available at: https://ssrn.com/abstract=2968653

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678 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 18:677
For the past century, the dispute resolution field has adopted a
Jeffersonian approach to its own reexamination. The Global
Pound Conference series (“GPC”), which runs throughout 2016-
2017, represents the latest moment in which the field has engaged
in intentional reflection. How well does our system of justice work?
Can human beings effectively, efficiently, and fairly resolve the
conflicts that inevitably emerge among us? Does society offer
meaningful alternatives to courtroom litigation? The GPC series
engages judges, lawyers, mediators, arbitrators, governments, stu-
dents, and academics on six continents and in 31 countries around
these questions.3 Its goal, not an immodest one, is “to create a
conversation about what can be done to improve access to justice
and the quality of justice around the world in civil and commercial
conflicts.”4
Dispute resolution professionals have these conversations reg-
ularly—at various annual conferences, in local bar associations,
and informally amongst themselves. But the GPC series represents
the third significant moment in the field’s history where profession-
als pause to take a more comprehensive stock of the justice system
and their role within that system. We have done this twice before,
in 1906 and 1976. Just as Jefferson wanted each subsequent gener-
ation to consider the architecture and effectiveness of its govern-
ment, dispute resolution professionals have also engaged in this
regular process of purposeful reexamination.
In light of the GPC, it is useful to take a brief step back to
consider the legacy of self-reflection that brings the field to this
exciting moment. As we reflect, we find ourselves facing new chal-
lenges and raising new questions about the direction of alternative
dispute resolution (“ADR”) in the 21st century. In this Article,
Sections II and III will introduce the “Framers” of the ADR indus-
try’s “Constitution,” and Section IV will evaluate their 100-year
legacy and consider the extent to which it now needs further
amendments.
3 Attend a GPC Series Event, GLOBAL POUND CONFERENCE, http://www.globalpoundcon-
ference.org/conference-series/attend-a-gpc-series-event#.WHEVJDtctw8.
4 About the GPC Series, GLOBAL POUND CONFERENCE, http://globalpoundconference.org/
about-the-series/about-gpc#.WHEbhjtctw9.

2017] LEGACY OF THE POUND CONFERENCES 679
II. THE FIRST POUND CONFERENCE OF 1906
By its very name, “alternative dispute resolution” is a field

with an axe to grind. It presents itself as an alternative to the de-
fault mechanism of dispute resolution, presumed to be courtroom
litigation. Resolving conflict outside of the courtroom is nothing
new, of course. Humans have done it for centuries, from the medi-
ations of Biblical times5 to the maritime arbitrations of ancient
Greece.6 But the professionalization of ADR into an “industry”
with its own sets of standards and associations, did not begin to
blossom until the 20th century. If ADR had a Big Bang, that Bang
was surely heard on August 29, 1906—the date of the first Pound
Conference.
To be clear, this first “Pound Conference,” from which both
the 1976 Pound Conference and the 2016 Global Pound Confer-
ence take their names, was not a dedicated “ADR conference” at
all. Rather, it was a speech delivered by Roscoe Pound, an unas-
suming Nebraska law professor, only 36-years old, who spoke to a
group of lawyers, judges, and academics assembled in Minnesota
Capitol in St. Paul during the 29th annual meeting of the American
Bar Association (“ABA”).7
Pound’s 1906 address was entitled, “The Causes of Popular
Dissatisfaction with the Administration of Justice.” Admittedly,
the name hardly sends a shiver of excitement down one’s spine.
But the famed evidence professor John Henry Wigmore, seated in
the audience, called it the “spark that kindled [a] white flame . . .
through the legal profession.”8 For lawyers who regularly attend
such bar conferences, the notion that any ABA speech would burn
like a “white flame” seems almost comical. Such events are gener-
ally somber and predictable. It is rare that any ABA address rip-
ples through history, much less sets the profession aflame. As
Randall T. Shepard, former Chief Judge of the Supreme Court of
Indiana noted, “[t]he conscious mind of most Americans recalls
5 See, e.g., Judith P. Meyer, Telling Stories: Lessons from the Bible, Literature and Film
Provide A Reference for Mediation Work, 23 ALTERNATIVES TO HIGH COST LITIG. 163 (2005).
6 See, e.g., Henry T. King, Jr. & Marc A. LeForestier, Arbitration in Ancient Greece, 49-SEP
DISP. RESOL. J. 38 (1994).

7 Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, 40
AM. L. REV. 729, 742 (1906).

8 John Henry Wigmore, Roscoe Pound’s St. Paul Address of 1906: The Spark that Kindled
the White Flame of Progress, 20 J. AM. JUDICATURE SOC’Y 176, 176 (1937) (stating that the
speech “struck the spark that kindled the white flame of high endeavor, now spreading through
the entire legal profession”).

but a handful of powerful speeches . . . . [T]he balance of Ameri-

can oratory is largely the province of the history cognoscenti.”9
And yet, he wrote, Pound’s speech was different. It “caught the
imagination of the legal profession and provoked decades of
reform.”
Before considering the substance of the speech, and why it
sparked such emotion, we should begin by considering the speaker
himself. Who was Roscoe Pound? Pound was a renaissance man
who would become one of the most prominent legal academics in
American history. He began his career as a botanist, earning his
bachelor’s, master’s and doctoral degrees in the subject from the
University of Nebraska. He changed direction, though, enrolling
for one year at Harvard Law School before dropping out and re-
turning to his native Nebraska to begin his own practice without a
law degree.10 In 1889, he took a teaching position at the University
of Nebraska’s law school and rose to become its dean.
His true legal celebrity would come after he left Nebraska. By
1907, he had accepted a professorship at Northwestern, and then at
the University of Chicago. In 1910, he moved to Harvard, and be-
came its dean in 1916—a position that he held until 1936. More
than being a superb administrator, dramatically expanding
Harvard’s curriculum, and growing its faculty, Pound was perhaps
the nation’s most prolific scholar. He remains one of the most
cited legal scholars of the 20th Century.11 The Harvard Crimson
noted in Pound’s obituary that “[d]uring his lifetime, [he] wrote
more than 300 treatises and books; the complete bibliography of
his writing fills 245 printed pages.”12
But at the time of his 1906 speech, Pound was hardly a legal
rock star. His most famous writings would not be published for
another two decades.13 He had not yet become a leader in the aca-
9 Randall T. Shepard, Introduction: The Hundred-Year Run of Roscoe Pound, 82 IND. L.J.
1153 (2007).
10 Roscoe Pound, 1870-1964, NEB. STATE HIST. SOC’Y (Dec. 12, 2006), http://nebraskahistory
.org/lib-arch/research/manuscripts/family/poundroscoe.htm.
11 Eli E. Nobleman, Review of Roscoe Pound, Treatise on Jurisprudence, 10 AM. U. L. REV.
179 (1961) https://www.wcl.american.edu/journal/lawrev/10/nobleman.pdf.

12 Roscoe Pound Dies at 93, Revitalized Legal System, HARV. CRIMSON, (July 3, 1961) http://
www.thecrimson.com/article/1964/7/3/roscoe-pound-dies-at-93-revitalized/.
13 Robert A. Stein, Causes of Popular Dissatisfaction with the Administration of Justice in the
Twenty-First Century, 30 HAMLINE L. REV. 499 (2007) (noting that his celebrated pieces had not
yet been published, including The Spirit of the Common Law (1921); Law and Morals (1924);
and Criminal Justice in America (1930)).

demic movements of legal realism or sociological jurisprudence14

that came to define his scholarship. All of these accomplishments
were still far in the future. For this reason, his speech seemed odd
at the time—a relatively junior dean of a non-Ivy League law
school offering his reflections on the justice system to an audience
of senior-level judges and lawyers.
What were the problems Pound identified, which set the legal
world abuzz? His 1906 ABA address launched 18 separate criti-
ques at the American system of civil justice.15 He broke these
down into four primary categories: (1) causes for dissatisfaction
with all legal systems; (2) causes for dissatisfaction with the “pecu-
liarities” of the Anglo-American legal system specifically; (3)
causes for dissatisfaction with American judicial organization and
procedure; and (4) causes for dissatisfaction with the environment
of American judicial administration.
He began his discussion relatively softly, with the innocuous
observation that all forms of law will inevitably create some degree
of dissatisfaction among those governed. “Dissatisfaction with the
administration of justice is as old as law,” he noted.16 “[A]s long as
there have been laws and lawyers, conscientious and well-meaning
men have believed that laws were mere arbitrary technicalities, and
that the attempt to regulate the relations of mankind in accordance
with them resulted largely in injustice.” People will always com-
plain in the face of a large bureaucracy, particularly one that must
set boundaries on human conduct. This is inevitable. Yet, Pound
cautioned, lawyers “must not be deceived by this innocuous and
inevitable discontent with all law into overlooking or underrating
the real and serious dissatisfaction with courts and lack of respect
for law which exists in the United States today.” In other words,
the fact that no system is perfect is no excuse for ignoring problems
that can be fixed.
As it relates to the alternative dispute resolution movement,
Pound leveled two significant complaints. The first was the manner
in which the courts emphasized the procedural form over the sub-
stance of human conflicts. He asserted that the court system had
14 Sociological jurisprudence, of which Pound was a pioneer, aimed to bring social sciences
like sociology, economics, and political science with the law “in order to make the law conform
to the needs and aspirations of an industrializing, urbanizing society.” Jay Tidmarsh, Pound’s
Century, and Ours, 81 NOTRE DAME L. REV. 513 (2006).
15 He limited his comments to civil litigation, though some might apply to criminal trials as
well. For a listing of all these 18 categories, broken down into headings and subheadings, see
Stein, supra note 13.
16 Pound, supra note 7.

become “archaic and our procedure behind the times.”17 The re-
sults are “[u]ncertainty, delay and expense, and above all, the injus-
tice of deciding cases upon points of practice.” For example, he
argued that the system of concurrent jurisdiction of state and fed-
eral courts in cases involving diversity of citizenship created a con-
voluted confusion where “causes [of action] continually hang in the
air between two courts, or, if they do stick in one court or the
other, are liable to an ultimate overturning because they stuck in
the wrong court.”18 Because of the “backwardness of our proce-
dure,” there is “a deep-seated desire to keep out of court, right or
wrong, on the part of every sensible business man in the
community.”
Pound’s second major complaint that underlay the growth of
the ADR movement was captured in a phrase he coined: the
“sporting theory of justice.”19 The effect of America’s “conten-
tious procedure:”
[L]eads counsel to forget that they are officers of the court and
to deal with the rules of law and procedure exactly as the profes-
sional football coach with the rules of the sport. It leads to exer-
tion to “get error into the record” rather than to dispose of the
controversy finally and upon its merits. It turns witnesses, and
especially expert witnesses, into partisans pure and simple . . . .
It prevents the trial court from restraining the bullying of wit-
nesses and creates a general dislike, if not fear, of the witness
function, which impairs the administration of justice . . . . It
grants new trials because by inability to procure a bill of excep-
tions 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 in-
quiry is not, What do substantive law and justice require? In-
stead, the inquiry is: Have the rules of the game been carried
out strictly? . . . The effect of our exaggerated contentious pro-
cedure is not only to irritate parties, witnesses and jurors in par-
ticular cases, but to give to the whole community a false notion
of the purpose and end of law.
This notion of litigation as a “game” to be “won” by lawyer-gladia-
tors was infecting Americans’ views of the civil justice system,
Pound charged. Treating civil litigation like a sport not only leaves
the court system in low regard, but tends to forget the needs of the
parties themselves.
17 Id.
18 Id. at 744.
19 Id. at 738.

Not surprisingly, Pound’s critiques of the adversarial litigation

model are not dissimilar from the sales pitches of mediators today.
Nevertheless, in 1906, his criticisms were seen as blasphemous. Ac-
cording to records of the evening, many were visibly startled and
offended that Pound would dare to criticize the profession.20 One
man declared that the American judicial system, far from being
archaic, “is the most refined and scientific system ever devised by
the wit of man,” and that Pound’s attacks were “too unconsciona-
ble to discuss.”21 For lawyers who viewed the American courthouse
as a beacon of justice, such criticisms did not sit well.
Perhaps today, Pound’s ideas seem fairly commonplace, if not
boring. Everyone has heard complaints about litigation’s arcane
procedural complexities; about litigators’ tendency to treat cases as
“games” to be won; and about the courts’ bureaucracy and stagna-
tion. These realities are taught in law schools almost as features of
the system, rather than bugs. For Pound’s audience, however, his
comments were scandalous. Initially, the ABA even refused to
publish his speech or disseminate it to a wider audience.22 Eventu-
ally, though, his remarks came to light, providing his contemporar-
ies (and us) with a vocabulary not just for naming problems with
the civil justice system, but also a roadmap for solving—or at least
ameliorating—them.23 Seventy years later, that roadmap would be
revisited and expanded during another gathering in St. Paul,
Minnesota.
III. THE SECOND POUND CONFERENCE OF 1976
Unlike the first “Pound Conference”—which was really just an

ABA conference made famous by Pound’s address—the second
Pound Conference was specifically named for Pound and intended
to address the concerns he raised in 1906. And while the 1906 event
20 Wigmore wrote that the audience sat “in dumb dismay and hostile horror at the deliver-
ances of the daring iconoclast.” Stein, supra note 13.
21 Rex E. Lee, The Profession Looks at Itself: The Pound Conference of 1976, 1981 BYU L.
REV. 737, 738 (1981).

22 Tidmarsh, supra note 14.
23 Many academics and judges have used Pound’s speech as a jumping point for their own
understanding, analysis and critiques of the civil justice system. See, e.g., John Paul Stevens,
Foreword, 78 CHI.-KENT L. REV. 907 (2003); Talbot D’Alemberte, A Critique of Roscoe Pound’s
Popular Dissatisfaction with the Administration of Justice: The Missing Discussion of Criminal
Law, 48 S. TEX. L. REV. 969 (2007); Carrie Menkel-Meadow, Introduction: What Will We Do
When Adjudication Ends? A Brief Intellectual History of ADR, 44 UCLA L. REV. 1613 (1997).

began the conversation of critiquing the justice system, the 1976

event generated far more specific policy proposals. Warren E. Bur-
ger, the Chief Justice of the United States, convened the 1976
Pound Conference, formally entitled the “National Conference on
the Causes of Popular Dissatisfaction with the Administration of
Justice.” When academics now refer to the “Pound Conference,”
this is usually the one they mean.
Before considering the conference itself, we should first con-
sider the man who organized it. In 1969, President Richard Nixon
appointed Burger as Chief Justice, a position he held until 1986.
Burger had previously been a judge on the U.S. Court of Appeals
for the District of Columbia Circuit, widely known for his strict
readings of texts and conservative leanings. When he got to the
High Court, though, he famously shifted his jurisprudence in ways
that displeased many of the Republicans who had supported his
nomination.24 Yet much of Burger’s legacy is not centered on par-
ticular opinions or dissents, but rather his approach to the justice
system overall. By all accounts, he “took seriously the title of
Chief Justice of the United States, not merely the Supreme Court,
and considered himself the steward of the whole judicial system,
state and federal.”25 He used his perch to advocate for reforms of
the litigation system to increase consistency, speed and efficiency.26
For example, he created the National Center for State Courts
which “helped courts reduce delays, improve jury operations, up-
date court technology and automation, and increase public access
to the courts.”27 He also advocated for professional administrators
to run the district and circuit courts, advocated for increases in
funding for federal courts to prevent overcrowded dockets, and ad-
24 His 549 opinions during his 17-year tenure demonstrated a far broader politics than his
conservative supporters had hoped or expected. For example, he voted with the majority in the
landmark case of Roe v. Wade, 410 U.S. 113 (1973). See generally, Phillip Craig Zane, An Inter-
pretation of the Jurisprudence of Chief Justice Warren Burger, 1995 UTAH L. REV. 975 (1995)
(analyzing his legacy).
25 Carl Tobias, Warren Burger and the Administration of Justice, 41 VILL. L. REV. 505 (1996).
Burger advocated, and achieved, numerous changes to the administration of the federal courts.
For example, he “was an avid proponent of court administrators, and he successfully advocated
for the establishment of the office of circuit executive . . . [and] convinced Senators and Repre-
sentatives to expand the jurisdiction of magistrate judges [to alleviate pressure on dockets].” Id.
at 509.
26 See, e.g., Warren Burger, Isn’t There a Better Way?, 68 A.B.A. J. 274 (1982); Warren
Burger, Agenda for 2000 A.D.-A Need for Systematic Anticipation, 70 F.R.D. 83, 93-96 (1976).
27 Ted E. Pons, Warren Burger, Friend of ADR, Dies at 87, DISP. RESOL. J., July/Sept., 1995,
at 7.

vocated for the development of specialized courts like the U.S.

Court of Appeals for the Federal Circuit.28
Thus, Burger had an understandable interest in convening a
conference around the 70th anniversary of Roscoe Pound’s famous
address. The two men shared a similar appraisal of the justice sys-
tem. By coincidence, Burger himself had been born in St. Paul, so
his choice to commemorate Pound’s address through another con-
ference there reflected the city’s personal and professional signifi-
cance to him.
Burger’s official purpose in organizing the Conference, held
between April 7 and April 9, 1976, was to consider whether
Pound’s original criticisms of the civil justice system had been ad-
dressed, and what more still needed to be done. Burger heralded
the gathering as an opportunity for “leaders of the bar, of the fed-
eral courts, of the state courts, and other representative leaders [to]
sit down to inquire into the nature and utility of our judicial system
as it is now constituted . . . . [This conference is] an effort to peer
into the future, to see where we ought to go, and to develop a
roadmap to show us how to get there.”29 The agenda of the Con-
ference was split into two tracks: first, a discussion of non-judicial
dispute resolution, and second, ways of creating a speedier and
more effective judicial system.30
Beyond the Chief Justice, who would become a leading advo-
cate of alternative dispute resolution,31 another star emerged
among the speakers. Frank Sander, who had been on the Harvard
Law School faculty since 1959, delivered a keynote address.
Sander laid out his vision for a courthouse of the future, which
would essentially sort disputes into different categories—some that
should be litigated, and others that should go through other
processes, such as facilitation, mediation, or arbitration.32 From
this notion that disputes should be sorted differently, applying the
appropriate forum to the particular conflict, “the story of modern
ADR explodes forward, with burgeoning activity in courthouses, in
28 Tobias, supra note 25 at 505.

29 Warren Burger, The 1976 Annual Report on the State of the Judiciary, 62 A.B.A. J. 443
(1976).
30 The full proceedings of the Conference were published in a volume entitled, “The Pound
Conference: Perspectives on Justice in the Future,” which also included a report by a follow-up
task force.
31 See generally Pons, supra note 27.
32 Frank E.A. Sander, Varieties of Dispute Processing, Address Before the National Confer-
ence on the Causes of Popular Dissatisfaction with the Administration of Justice, 70 F.R.D. 79,
111 (1976).

scholarship, in law school curricula, in legislation, and in prac-

tice.”33 Sander expanded Pound’s initial criticisms of the civil litiga-
tion system as glacially slow and procedurally archaic by offering a
new concept of the system itself: instead of sending every civil dis-
pute to a judge after an extensive discovery process and burden-
some motion practice, he proposed an new alternative system that
could work parallel to the litigation system. This notion of the
“multi-door courthouse”34 became a hallmark of the dispute reso-
lution movement. Suddenly, courts were no longer merely houses
of litigation, but centers where parties might find resources to more
fully resolve their conflicts—whether through a court-connected
arbitration program, a referral to a non-profit mediation organiza-
tion, or an in-house community center.35
Burger and Sander’s addresses set the tone for the discussion,
that ADR could be a “promising remedy for the particular dissatis-
faction that arose from the cost, delay, and inaccessibility of adjudi-
cation.”36 The remainder of the Conference resulted in concrete
ideas and discussions among leading lawyers and judges. Brain-
storming ranged from the structures of the federal courts, to the
role of small claims courts, to revisions to various procedural rules.
Thanks to the support of the Chief Justice and the ABA, these
ideas did not remain theoretical. A formal Pound Conference Fol-
low-Up Task Force was charged with articulating and overseeing
the development of specific recommendations.37 This Task Force
submitted its recommendations to the ABA in the summer of 1976,
and then issued supplemental recommendations in the winter of
33 Michael Moffitt, Before the Big Bang: The Making of an ADR Pioneer, 22 NEGOT. J. 437
(2006).
34 Interestingly, Sander himself did not coin the phrase “multi-door courthouse,” which be-
came so famous in the field. He later recounted that an ABA publication that covered his speech
was the source: “On the cover, [the ABA] had a whole bunch of doors, and they called it the
multi-door courthouse. I had given it a much more academic name, the ‘comprehensive justice
center,’ but so often the label you give an idea depends a lot on the dissemination and the
popularity of the idea. So, I am indebted to the ABA for having this catchy name—multi-door
courthouse.” A Dialogue Between Professors Frank Sander and Mariana Hernandez Crespo: Ex-
ploring the Evolution of the Multi-Door Courthouse, 5 U. ST. THOMAS L.J. 665, 670 (2008).
35 See generally, Frank E. A. Sander & Lukasz Rozdeiczer, Matching Cases and Dispute Res-
olution Procedures: Detailed Analysis Leading to a Mediation-Centered Approach, 11 HARV.

NEGOT. L. REV. 1 (2006) (providing a detailed analysis of how the Multi-Door Courthouse func-
tions); Frank E. Sander & Steven B. Goldberg, Fitting the Forum to the Fuss: A User-Friendly
Guide to Selecting an ADR Procedure, 10 NEGOT. J. 49 (1994).
36 Dorothy J. Della Noce, Mediation Theory and Policy: The Legacy of the Pound Confer-
ence, 17 OHIO ST. J. ON DISP. RESOL. 545, 546 (2002).

37 William H. Erickson, The Pound Conference Recommendations: A Blueprint for the Justice
System in the Twenty-First Century, 76 F.R.D. 277, 279–80 (1978).

1977. Their 35-page Report included several dozen ideas that

touched on topics as wide-ranging as the proliferation of adminis-
trative agencies to the role of the trial judge in issuing discovery
sanctions.38 Three of the recommendations are particularly note-
worthy for the ADR community.
First, the Report advised that the ABA work with local courts
and communities to create Neighborhood Justice Centers—essen-
tially facilities that “would be designed to make available a variety
of methods of processing disputes, including arbitration, mediation,
referral to small claims courts as well as referral to courts of gen-
eral jurisdiction.”39 Not surprisingly, such facilities sound a great
deal like the “multi-door courthouse” proposed by Sander, which
could effectively determine which method of conflict resolution
would best fit a particular conflict.
Second, the Report endorsed the expanded use of compulsory
arbitration of certain disputes where the amount in controversy
was relatively low. The Task Force favorably cited programs where
such disputes were decided by three experienced attorneys, typi-
cally where the amount in controversy was below $10,000 and no
equitable relief was sought. The program would essentially remove
large numbers of claims from the court system, clearing the docket
(although cases would be appealable and examined de novo). Cost
savings would be likely. “Compared to the cost of court trials the
cost per case is small indeed,” the Report noted. “Lawyers provide
facilities for the conduct of the hearings at no cost to the state and
the rate of compensation for the arbitrators is typically very mod-
est. Indeed, the success of compulsory arbitration is due in no small
measure to the willingness of the members of the bar to participate
in the program as a public service.”40 In short, compulsory arbitra-
tion of smaller matters could save courts both time and money,
allowing judges to focus on weightier cases.
Third, the Report suggested that federal, state and local courts
should not be used for non-adversarial proceedings. The use of
courts, the Task Force argued, “should be reserved for the resolu-
tion of controversies and the vindication of rights.” Courts need
not be used for non-adversarial legal matters, such as “uncontested
probate, uncontested divorce, incorporating membership corpora-
tions, approving changes of name and, in some cases, making ap-
38 American Bar Association Report of Pound Conference Follow-Up Task Force, 74 F.R.D.
159, 161 (1976).

39 Id. at 168.
40 Id. at 179–180.

pointments to semi-public offices.” While recognizing that such

changes would require much study and coordination with state and
local courts, the Report emphasized that these sorts of ministerial
legal issues could be handled by other government and administra-
tive agencies, and not the court system.41 Relatedly, in the criminal
context, the Report also suggested the decriminalization of certain
“victimless” crimes, such as “public drunkenness.”42 Again, such
decriminalization would have the effect of clearing the court dock-
ets and referring such issues to appropriate administrative or social
service agencies.
The 1976 Pound Conference represented a continuation of the
conversation begun 70 years earlier. Yet this time, instead of a
young professor throwing bombs into a room filled with establish-
ment attorneys, the 1976 Pound Conference was convened by the
Chief Justice of the United States himself. Advocacy of ADR had
become mainstream, not just as an “alternative” to the justice sys-
tem, but as a necessary part of that system.43 The legacy of both
the 1906 and 1976 Pound Conferences continue to ripple forward,
informing our collective understanding of the problems facing the
civil justice system.
IV. LEGACY AND IMPACT OF THE POUND CONFERENCES
Much time has been spent analyzing the national impact of

Roscoe Pound, Warren Burger and Frank Sander’s contributions to
the conflict resolution landscape.44 In recent years, studies have
pointed to an even broader scope to their collective legacy. Mo-
mentum from the Pound Conferences has extended beyond the do-
mestic realm and grown into an international movement, informing
and resulting in the GPC series that has been taking place through-
out 2016–2017.45 Furthermore, the ADR toolbox that was first for-
41 Id. at 185–186.
42 Id. at 184.
43 The 1976 Pound Conference in particular has been widely credited with creating the mod-
ern ADR field. Kimberlee K. Kovach, Privatization of Dispute Resolution: In the Spirit of
Pound, but Mission Incomplete: Lessons Learned and A Possible Blueprint for the Future, 48 S.
TEX. L. REV. 1003 (2007) (“Certainly, contemporary ADR is in large part the result of the 1976
Pound Conference”).
44 L. Camille Herbert, Introduction—The Impact of Mediation: 25 Years After the Pound
Conference, 17 OHIO ST. J. ON DISP. RESOL. 527 (2002).

45 Deborah Masucci, Michael McIlwrath & Jeremy Lack, The Global Pound Conference Se-
ries, DISP. RESOL. MAG. 28 (2016).

malized by these forefathers has permeated the virtual realm,

where internet platforms now allow for negotiations and media-
tions to take place with no geographic limitations.46 The Pound
Conferences of the past could never have contemplated such plat-
forms. And so, as Jefferson would suggest, we must evaluate how
far we have come, and where we have landed, in an effort to ex-
plore, and perhaps reconsider, where we are going.
In order to fully analyze the lessons of the Pound Conferences
and identify any gaps that remain, it is important to consider a
number of data points regarding ADR’s proliferation since 1976,
and certainly since 1906. There have been notable advancements,
as well as some challenges. The shifts have been primarily marked
by the evolution of statutory mandates; the broadening of legal ed-
ucation; the newfound commitment of businesses to process selec-
tion; and the expansion of ADR awareness into popular culture.
This section offers a brief survey of how each of these categories
offers insight into the continued impact and legacy of the Pound
Conferences.
A. Progress in Statutes and Regulations that Mandate

a Multi-Door Approach
There has been substantial statutory and regulatory progress

surrounding national and global acceptance, and encouragement,
of ADR. Over the course of the past 40 years, Congress has re-
peatedly acknowledged the benefits of ADR, enacting legislation
such as the Judicial Improvements and Access to Justice Act47 and
the Alternative Dispute Resolution Act.48 More recently, the Eu-
ropean Parliament and Council of the European Union issued an
Alternative Dispute Resolution Directive and an Online Dispute
46 Ethan Katsch & Colin Rule, What We Know And Need To Know About Online Dispute
Resolution, 67 S.C. L. REV. 329 (2016).

47 Judicial Improvements and Access to Justice Act, 28 U.S.C.A. § 652 (1993 & Supp. 2003)
(allowing U.S. district court submission of disputes to arbitration).

48 Alternative Dispute Resolution Act of 1998, Pub. L. No. 105-315, 112 Stat. 2994 (requiring
district court to mandate that all civil litigants consider using ADR processes). Other Congres-
sional actions suggest that Congress is interested in promoting the use of ADR to resolve a
variety of disputes. See 2 U.S.C.A. § 1401 (1997) (noting that the Board of Directors of the
Office of Compliance, an agency tasked with reviewing complaints brought by Congressional
employees, may order counseling or mediation in addition to board hearings and federal civil
action). See also 5 U.S.C.A. § 572 (1996) (encouraging agencies to submit administrative dis-
putes to ADR, including but not limited to those regarding labor disputes and claims by individ-
uals with disabilities ).

Resolution Regulation49 requiring that all EU national govern-

ments provide certified ADR outlets for all contract-based con-
sumer complaints. This inspired national ADR reform in each EU
Member State. Legislative approaches to expanding the use of
ADR continue to be effective and accepted worldwide.
In addition to receiving clear Congressional endorsement,
many states throughout the United States have now mandated a
variety of ADR pathways, often suggesting alternative approaches
to disputes involving labor and employment, commercial, and mat-
rimonial matters.50 Mediation, settlement conferencing, neutral
evaluation, and arbitration have become widely accepted dispute
resolution options. The Uniform Law Commission51 has even gone
so far as to approve several uniform acts that have since been
adopted by a majority of states, including the Uniform Arbitration
Act52 and the Uniform Mediation Act.53 Common law practice has
also resulted in relatively consistent deference to decisions emanat-
ing from ADR processes, bolstering confidence in the reliability
and stability of such approaches.54
While initially hesitant, parliaments throughout Europe have
offered ADR directives that have strongly encouraged the use of
arbitration, mediation and online dispute resolution.55 EU Mem-
49 Directive 2013/11 of the European Parliament and of the Council of 27 March 2013 on
alternative dispute resolution for consumer disputes and amending Regulation (EC) No. 2006/
2004 and Directive 2009/22/EC (Directive on consumer ADR), O.J. (L 165), 63 (hereinafter
“EU Directive”); Regulation 2013/11 of the European Parliament and of the Council on online
dispute resolution for consumer disputes and amending Regulation (EC) No. 2006/2004 and Di-
rective 2009/22/EC (Regulation on Consumer ODR), O.J. (L 165), 1.
50 Both federal and state legislatures continue to provide for ADR in their statutes. W.D.
Tex. Loc. R. CV-88 (codifying the U.S. District Court for the Western District of Texas’s recogni-
tion of early neutral evaluation, mediation, mini-trial, moderated settlement conference, sum-
mary jury trial, and arbitration); Fla. Stat. § 44.1011 (1997) (giving judges in Florida the
authority and discretion to submit nearly all types of cases to mediation or arbitration).
51 The Uniform Law Commission, established in 1892, aims to provide states with non-parti-
san legislation that creates conformity, clarity and stability across various areas of state statutory
law.
52 UNIFORM ARB. ACT, 7 PT. IA. U.L.A. 1-98 (2009 & Supp.2015). The revised version of
this Act, adopted by 49 states, appears at http://www.uniformlaws.org/Act.aspx?title=Arbitration

%20Act%20 (2000).
53 NAT’L CONF. OF COMMISSIONERS ON UNIFORM ST. LAWS, UNIFORM MEDIATION ACT
(2001), http://www.uniformlaws.org/shared/docs/mediation/uma_final_03.pdf (providing direc-

tives regarding confidentiality and privilege in mediation).
54 See Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504 (2001) (reviewing and
reversing a Court of Appeals decision that reversed an arbitration panel’s conclusions, explain-
ing that judicial review of labor arbitration decisions is limited).
55 See EU Directive, supra note 49, (providing a framework for cross-border mediation
through member state implementation of laws, regulations, and administrative provisions. The

ber States have responded to such formal directives by com-

pounding unified approaches to cross-border mediation with
national legal reform, creating national ADR codes56 that mimic
the United States’ legislative progress. In 2014, the European Par-
liament analyzed the impact of its initial mediation directive and
decided to attach a recommendation that mediations for EU liti-
gants be mandated, citing the notable benefits to those engaging in
mediation processes and seeking to further boost access to media-
tion in the EU.57 Such a heavy handed decision, mandating broad
implementation, confirms that global powers will continue to en-
courage nation-states and citizens to increase their use of ADR.
Alas, statutory and regulatory progress alone is insufficient.
Despite recommendations and mandates, many actual users of
these ADR systems remain skeptical. Those attorneys who have
committed to adversarial techniques doubt the reliability of altera-
tive pathways towards justice. Many clients still defer to idealized
notions of in-court practices. While the Pound Conferences have
inspired significant systemic and structural change, self-reflectively
examining the status quo, progress ultimately rests on the shoul-
ders of average users–parties to ADR.
B. Progress in Legal Education
In the 40 years since the last Pound Conference, attitudes to-

wards ADR in legal education have transformed radically and rap-
idly.58 At first, many traditional law professors feared that diluting
a traditional litigation-centric approach would confuse law students
and undermine their ability to acquire legal reasoning skills.59 That
concern has since been laid to waste. Legal scholars and deans
tone of this directive is inconsistent and tentative, at times offering concrete rules and at other
times expressing suggestions and desires rather than distinct orders).
56 France, Germany, Greece, Italy, Spain, and other EU member states have developed their
own ADR and mediation specific laws over the course of the past eight years.
57 See Guiseppe De Palo & Romina Canessa, Sleeping? Comatose? Only Mandatory Consid-
eration of Mediation Can Awake Sleeping Beauty in the European Union, 16 CARDOZO J. CON-
FLICT RESOL.713 (2014).
58 See generally Frank E. A. Sander, Alternative Dispute Resolution in the Law School Cur-
riculum: Opportunities and Obstacles, 34 J. LEGAL EDUC. 229 (1984); Beryl Blaustone, Training
the Modern Lawyer: Incorporating the Study of Mediation into Required Law School Courses, 21
SW. U. L. REV. 1317 (1992); Lela P. Love, Twenty-Five Years Later with Promises to Keep: Legal
Education in Dispute Resolution and Training of Mediators, 17 OHIO ST. J. DISP. RESOL. 597
(2002).
59 See generally Sander, supra note 32; Blaustone, supra note 58; Love, supra note 58.

have realized that familiarity with negotiation, mediation and arbi-

tration are not distractions from litigation training; rather, such fa-
miliarity can actually create litigators who are better equipped for
modern practice. ADR instruction forces students to consider mul-
tiple perspectives and fosters an ability to react thoughtfully to par-
ties on all sides of a bargaining table.60 As law schools struggle to
create more “practice ready” lawyers, ADR education has become
particularly important.61
Today, some of the best law schools in the country boast vi-
brant ADR programs, noting that that these programs produce tal-
ented and thoughtful attorneys who are able to assist their clients
holistically without jumping to one-size-fits-all litigation methods.
According to U.S. News and World Report, some of the top dispute
resolution training programs can be found at Harvard University,
Cardozo School of Law, Ohio State University, Pepperdine Uni-
versity, University of Missouri, and the University of Oregon.62
Students are competitively selected for participation in these highly
ranked programs, and many decide which law schools to attend
based on the school’s ADR curricular and extracurricular offer-
ings. As participants in these programs, students enthusiastically
compete in ADR competitions, work on esteemed journals, take a
variety of ADR courses, pursue certificates, and gain valuable
clinical experience.
Although the legal academy has been slow to accept ADR
scholars,63 this is changing.64 ADR-focused faculty members hold
positions as law school faculty members in doctrinal and clinical
settings alike. Traditional law school professors now work with
professors who teach new techniques, sometimes learning to chal-
lenge their own litigation-centric approaches to conflict. Research
60 Cathy Cronin-Harris, Why Take ADR Courses In Law School By Cathy Cronin-Harris,
ABA (Mar. 2008), http://www.americanbar.org/content/dam/aba/directories/dispute_resolution/

0177_croninharris_why_take_adr_classes.authcheckdam.pdf.
61 Lela P. Love & Brian Farkas, Silver Linings: Reimagining the Role of ADR Education in
the Wake of the Great Recession, 6 NE. U. L.J. 221 (2013) (discussing the place of ADR within
the legal academy).
62 Dispute Resolution, U.S. NEWS & WORLD REPORT EDUCATION (2016), http://grad-
schools.usnews.rankingsandreviews.com/best-graduate-schools/top-law-schools/dispute-resolu-
tion-rankings. These programs train students to guide clients through negotiations, mediations,
and arbitrations.
63 Jennifer W. Reynolds, The Lawyer with the ADR Tattoo, 14 CARDOZO J. CONFLICT
RESOL. 395, 410–11 (2013) (discussing the “branding problem” of ADR within the academy for
junior legal scholars seeking tenure, as well as for students considering the effect of the “ADR
brand” on their careers).
64 Love & Farkas, supra note 61.

has shown that such collaboration improves legal education over-

all.65 “Unconventional” dispute resolution has become a respecta-
ble concentration for scholarship and study.
Despite marked progress since the 1976 Pound Conference,
academic integration is not without pitfalls. Some scholars fear that
as ADR education becomes increasingly mainstreamed, the purity
of alternative skills training will be diluted. While adversarial at-
torneys may reap benefits from exposure to mediation and other
forms of ADR, “purist” facilitative mediators may also cease to
exist. Individual students may cease to actually specialize in ADR
and instead strive to become “renaissance practitioners,” making
Frank Sander’s multi-door courthouse dream harder to realize. In-
stead of matching conflicts to specific processes, these renaissance
practitioners may start to feel equipped to handle all processes
themselves, sacrificing the benefits of targeted expertise.
Furthermore, while ADR has become an integral part of most
law schools’ offerings in the decades since 1976, it remains true that
career-conscious students are cautious of pursing ADR exclusively.
This will continue to be the case until they are assured that an
“ADR career” can offer a stable livelihood with a consistent influx
of clients. While ADR departments have become popular addi-
tions to many academic institutions, students will only fully em-
brace the legacy of Pound’s ideals when system users show them
that their services are truly needed.
C. Progress in Industry Commitment to

Alternative Dispute Resolution
In the non-profit and for-profit sectors alike, commitment to

ADR has skyrocketed. Community Mediation Centers (“CMCs”)
and ADR departments at big law firms provide targeted services
for clients and employment opportunities for ADR professionals.66
Private attorneys and in-house counsel recommend arbitration
clauses to businesses engaging in contract negotiations, noting the
benefits of binding parties to alternative processes in the event that
conflicts arise. The expanded use of ADR, paired with the devel-
65 John Lande & Jean R. Sternlight, The Potential Contribution of ADR to an Integrated
Curriculum: Preparing Law Students to Real World Lawyering, 25 OHIO ST. J. ON DISP. RESOL.
248 (2010), http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1264&context=facpub.
66 Timothy Hedeen, The Evolution and Evaluation of Community Mediation: Limited Re-
search Suggests Unlimited Progress, 22 CONFLICT RESOL. Q. (2004).

opment of new tensions surrounding its application in the business

world, offers a continued reminder that the dispute resolution
world must continue to evolve and reevaluate.67
CMCs throughout the United States and in Europe offer ac-
cess to ADR services, viewing such access as a necessary way to
ensure justice for all. While CMCs vary in service offerings and
structure, all centers feature staff or volunteer mediators, sliding
scale fees and public services to persons of varying socioeconomic
dispositions, and important alternatives to the judicial system.68
There are now over 400 community mediation programs across the
United States, serving over a million individuals.69
ADR Departments at big law firms serve high net worth cli-
ents who seek to resolve their disputes outside of the courtroom.
These departments assist companies and individuals in engaging
with ADR techniques in the transactional and adversarial arena
alike. They help navigate national and international dispute reso-
lution schemes, engaging with complex cross-border arbitration
and mediation policies. They explain the benefit of incorporating
ADR frameworks into business contracts and employment rela-
tionships,70 sometimes adding so many arbitration and mediation
clauses to company contracts that the ADR community itself has
expressed concerns over the excessive use of clauses that may in
fact protect the interests of large businesses to the exclusion of
claimants.71
Controversies aside, these CMCs and ADR Departments have
become increasingly inundated by requests for access to ADR,
whether in order to resolve personal disputes or to enforce con-
tract provisions and assist with cross-border business relations.
Where it was once inconceivable that traditional litigators would
accept the legitimacy of ADR approaches, litigators and ADR pro-
fessionals are now working side by side in the public and private
arenas alike.
67 Thomas Stipanowich & Ryan J. Lamare, Living with ‘ADR’: Evolving Perceptions and Use
of Mediation, Arbitration and Conflict Management in Fortune 1,000 Corporations, 19 HARV.

NEGOT. L. REV. 1 (2013).
68 Justin R. Corbett & Wendy E.H. Corbett, The State of Community Mediation 2011, NAT’L
ASS’N FOR COMM. MEDIATION 2011 (March 2012).

69 Id.
70 David B. Lipsky, How Corporate America Uses Conflict Management: The Evidence from
a New Survey of the Fortune 1000, 30 ALTERNATIVES TO HIGH COST LITIG. 139 (July/August
2012).
71 Thomas J. Stipanowich, Arbitration: The “New Litigation”, 2010 U. ILL. L. REV. 1 (2010);
Thomas Stipanowich, Arbitration and Choice: Taking Charge of the ‘New Litigation,’ 7 DEPAUL
BUS. & COMM. L 1 (2009).

Evidence of such professional collaboration continues to show

that the integration of ADR is need-based. If clients continue to
seek litigation and in-court outlets for dispute resolution, the use of
ADR will continue to be limited. The legacy of the Pound Confer-
ences will only continue to evolve and flourish if society at large is
taught to value and pursue alternative options to dispute
resolution.
D. Progress in Permeating Popular Culture: Challenging the

“Day In Court” Ethos
While there has been notable progress in statutory and regula-

tory direction, formal ADR education, and industry recognition,
mass social awareness of ADR remains has only just begun. ADR
professionals still find themselves fighting against the impulses of
Law and Order viewers who yearn for their “day in court” because
society has told them to do so. Luckily, in recent years, ADR has
started making an appearance in films and on television shows.
This public limelight represents the new frontier—the preservation
of Pound’s legacy through popular culture and mass education.
Until 2005, most mainstream films glorified the energy and wit
of litigious attorneys and the aggressive pursuit of in-court justice.
From Atticus Finch and Gregory Peck to Erin Brockovich and Ju-
lia Roberts, only adversarial advocates for justice were presented
to mass audiences.72 Even personal disputes, such as prenuptial
and divorce negotiations, were portrayed as necessarily aggressive
as recently as in 2003, when George Clooney’s character in Intoler-
able Cruelty saw all premarital and matrimonial processes through
the lens of tense negotiation and elaborate courtroom antics.73
In 2005, however, this started to change. A popular film, Wed-
ding Crashers, opened with a scene in which Owen Wilson and
Vince Vaughn co-mediated a divorce dispute between two po-
larized parties.74 For many viewers, this slapstick blockbuster,75
featuring famous actors and terse commentary, was their first ex-
posure to divorce mediation.
72 Taunya Lovell Banks, To Kill a Mockingbird (1962): Lawyering in an Unjust Society, in
SCREENING JUSTICE—THE CINEMA OF LAW: FILMS OF LAW, ORDER AND SOCIAL JUSTICE
(2006); Jessica Silbey, A History of Representations of Justice: Coincident Preoccupations of Law
and Film, in REPRESENTATIONS OF JUSTICE (2007).
73 See Silbey, supra note 72.
74 Jennifer L. Schulz, The Mediator as Cook: Mediation Metaphors at the Movies, 2007 J.
DISP. RESOL. 455 (2007).

Through comedy, the opening scene accurately portrayed the

advantages of mediation, presenting a process in which mediators
could reframe arguments and highlight mutual interests, clients
could speak openly and drive the negotiation themselves, and all
parties were made aware of the time and cost efficiency of staying
out of court. While most divorce mediators do not welcome attor-
neys into the room or empower continued bickering, as shown on
screen, much of the scene was unexpectedly accurate.
By 2016, mediation and ADR started making their way into
the media even more regularly. In 2011, characters on The Good
Wife found themselves participating in a court-ordered media-
tion.76 The 2011-2012 show Fairly Legal featured a mediator as its
lead character.77 In 2014, the hit show Parenthood traced a
couple’s tumultuous marital journey through a nuanced divorce
mediation process that spanned numerous episodes.78
Suddenly mediation was no longer a topic that required intro-
duction and explanation. Just as characters on television shows and
movies started walking into fictitious mediation rooms, more and
more viewers started considering walking into real ones.
While justice was no longer portrayed solely through a “day in
court,” there is still much work to be done. ADR is not yet at the
forefront of popular consciousness. The number of television
shows and films featuring mediation or arbitration pale in compari-
son to the number of episodes of Law and Order alone.79 Until
this imbalance is rectified, clients may remain skeptical of ADR
processes and strive to pursue more deeply indoctrinated litigious
desires. Popular culture should not be underestimated. The legacy
of the Pound Conferences will flourish when Roscoe Pound and
Franks Sander’s vision is realized on screen, for all to see.
75 See Evan Jacobs, Wedding Crashers is Blockbuster’s Most Rented Title of 2006, MOVIE
WEB, http://movieweb.com/wedding-crashers-is-blockbusters-most-rented-title-of-2006 (2016)

(deeming Wedding Crashers the most frequently rented film in 2006).
76 See generally JENNIFER SHULZ AND PETER ROBSON, A TRANSNATIONAL STUDY OF LAW
AND JUSTICE ON TV (2016).

77 Denise Tamir, Fairly Legal: Farfetched Fun, MEDIATE (2011), http://www.mediate.com/
articles/tamirD1.cfm.
78 Rachel K. Miller, Divorce Drama vs. Divorce Reality, RICHARDSON BLOOM & LINES: THE
BLOG (Oct. 20, 2016), http://www.rblfamilylaw.com/divorce-drama-vs-divorce-reality/.

79 See SHULZ & ROBSON, supra note 76.

V. CONCLUSION
At first glance, one might feel depressed that we still face

many of the same problems that Roscoe Pound identified more
than a century ago. Lawyers can be overly adversarial and expen-
sive; parties are reluctant to try alternatives to litigation; court
processes can seem overly technical and place too little emphasis
on the disputants themselves; and civil litigation can be lengthy and
unpredictable. The more things change, the more they seem to
stay the same.
But there is also cause for optimism. Our justice system has
undergone tremendous changes over the past century, particularly
given the magnitude of the historic changes over that time. Each
of the three Pound Conferences—1906, 1976, and now 2016—oc-
curred during important inflection points in American political and
economic history. The beginning of the 20th Century saw rapid
population explosion, the expansion of urban centers around man-
ufacturing, and the mass economic growth of the Second Industrial
Revolution. By the 1970s, America had survived two world wars
and emerged as a global superpower, with dramatically increased
consumerism. And now, in the second decade of the 21st Century,
the American economy expands in new directions with the rise of
the Internet age and increasingly globalized streams of commerce.
The shifting economic and social norms of each new era chal-
lenges the justice system generally, and the court system specifi-
cally. Economic growth inevitably means more contractual
breaches, more infringed patents, and more deals gone bad. With
more business comes more human interaction, and with more
human interaction comes more human conflict. Now, these con-
flicts increasingly occur across state and national lines. All of this
presents heavy challenges for a system of dispute resolution that is,
at its core, based in localized courts applying localized laws. The
GPC series offers a chance to reflect on these new globalized chal-
lenges, and the ways in which the dispute resolution field must
meet this new moment.
Thomas Jefferson warned that each new generation must con-
sciously consider its own definitions of law and justice. Each of the
three Pound Conferences has offered a chance to do just that.
What remains broken in our civil justice system? How can we re-
solve inevitable conflicts using means that are as efficient, fair, and
humane as possible? And how can we do so within the boundaries
of the rule of law? These same questions will likely be asked many

decades from now, during the fourth and fifth and sixth and sev-
enth Pound Conferences. Dispute resolution professionals should
remain mindful of their continued responsibility to never stop ask-
ing them.

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txt unknown Seq: 1 27-APR-17 13:41

THE HISTORY AND LEGACY OF

Lara Traum* and Brian Farkas**

When the Constitution was drafted, the Framers disagreed as

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678 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 18:677

3 Attend a GPC Series Event, GLOBAL POUND CONFERENCE, http://www.globalpoundcon-

Electronic copy available at: https://ssrn.com/abstract=2968653

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2017] LEGACY OF THE POUND CONFERENCES 679

II. THE FIRST POUND CONFERENCE OF 1906

By its very name, “alternative dispute resolution” is a field

DISP. RESOL. J. 38 (1994).

AM. L. REV. 729, 742 (1906).

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680 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 18:677

but a handful of powerful speeches . . . . [T]he balance of Ameri-

179 (1961) https://www.wcl.american.edu/journal/lawrev/10/nobleman.pdf.

Electronic copy available at: https://ssrn.com/abstract=2968653

2017] LEGACY OF THE POUND CONFERENCES 681

demic movements of legal realism or sociological jurisprudence14

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682 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 18:677

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2017] LEGACY OF THE POUND CONFERENCES 683

Not surprisingly, Pound’s critiques of the adversarial litigation

III. THE SECOND POUND CONFERENCE OF 1976

Unlike the first “Pound Conference”—which was really just an

REV. 737, 738 (1981).

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684 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 18:677

began the conversation of critiquing the justice system, the 1976

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2017] LEGACY OF THE POUND CONFERENCES 685

vocated for the development of specialized courts like the U.S.

28 Tobias, supra note 25 at 505.

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686 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 18:677

scholarship, in law school curricula, in legislation, and in prac-

olution Procedures: Detailed Analysis Leading to a Mediation-Centered Approach, 11 HARV.

ence, 17 OHIO ST. J. ON DISP. RESOL. 545, 546 (2002).

System in the Twenty-First Century, 76 F.R.D. 277, 279–80 (1978).

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2017] LEGACY OF THE POUND CONFERENCES 687

1977. Their 35-page Report included several dozen ideas that

159, 161 (1976).

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688 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 18:677

pointments to semi-public offices.” While recognizing that such

IV. LEGACY AND IMPACT OF THE POUND CONFERENCES

Much time has been spent analyzing the national impact of

Conference, 17 OHIO ST. J. ON DISP. RESOL. 527 (2002).

ries, DISP. RESOL. MAG. 28 (2016).

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2017] LEGACY OF THE POUND CONFERENCES 689

malized by these forefathers has permeated the virtual realm,

A. Progress in Statutes and Regulations that Mandate

There has been substantial statutory and regulatory progress

Resolution, 67 S.C. L. REV. 329 (2016).

(allowing U.S. district court submission of disputes to arbitration).

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690 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 18:677