What Would Roscoe Pound Do?

Washington and Lincoln -- The president's executive order banning travel from seven Muslim-majority countries has been overturned in one fashion or another by federal courts, but likely the order will be re-issued in somewhat different form and will again come before the judiciary. There is much speculation about how courts will eventually rule, as the issue pits fundamental civil rights against the national security powers of the president.

How might Roscoe Pound have approached the question? Pound is venerated in Nebraska, a member of the state's Hall of Fame. A century ago, Pound changed American law forever with his writings on "sociological jurisprudence." He argued that the law cannot be blind to social reality. Perhaps the most famous decision employing sociological jurisprudence is Brown v. Board of Education, in which the U.S. Supreme Court knocked down school segregation by concluding that although the law on its face provided separate but equal education, it was a sociological fact that segregated schools were not equal.

Is there a social reality that likewise must be addressed in the matter of the travel ban? Yes, according to research that suggests the ban is counterproductive to national security. The argument is that the alienation created by the ban is more of a national security concern than any danger posed by vetted travelers from the selected countries. It is not the same argument that the ban is unconstitutional because it is based on a religious test. While the religious question has been raised in attempts to overturn the travel ban, the social reality question has not.

Hence the reflection on what Roscoe Pound would do. I think he would argue for consideration of the social realities involved in the travel ban, even though on the face of it the executive order creating it purports to enhance national security.

Those of the "originalist" persuasion (what we used to call strict constructionism) likely would argue against recognition of social realities in the travel ban cases. But one of the problems with the originalist position is that it has welcomed into its philosophy of jurisprudence the so-called Law and Economics Movement, which advocates for more recognition of economic realities, such as costs of legal and regulatory compliance. It is inconsistent to embrace one reality but not another.

As the travel ban is further considered by the courts, Nebraskans especially should remember the work of the state's greatest legal scholar, Roscoe Pound.