Legal Process

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The legal process school of legal theory was a movement among legal scholars beginning in the 1950s and continuing through the end of the 1960s, a movement that represented an effort to craft a comprehensive theory of legal decisionmaking, especially in the public law area, to combat legal realism and the doctrinal shifts reflected in the jurisprudence of the warren court. The foundation of this work was laid in a series of influential books and articles, most notably henry m. hart, jr. , and Albert Sacks's magnum opus The Legal Process: Basic Problems in the Making and Application of Law (1958).

Although the sources of the legal process school are complex, the basic principles grew out of public law scholars' critiques of modern legal thought in both its theoretical and doctrinal aspects. Out of the post-war period came a skepticism about legal positivism, that is, the view that law represents nothing more nor less than the executable commands of the sovereign, and a skepticism about natural law theory. Scholars working within the legal process tradition were determined to substitute both for positivism and natural law theory a theory of legal decisionmaking which would help students, scholars, and judges focus not on the outcomes of legal decisions but on the processes of legal institutions, especially courts. Moreover, in the period of the late 1950s and 1960s, these same scholars grew ever more concerned with the direction of the Warren Court's decisions. Critics of the era described the Warren Court as substituting a "jurisprudence of values" for the previously more restrained and moderate patterns of decisions in the new deal era. The problem, as these critics viewed it, was that the Court was writing particular ideological values and preferences into doctrine, thus leaving the Court vulnerable to the essential legal realist charge that judicial decisionmaking was unprincipled, subjective, and chaotic.

In response both to the post-war angst about positivistic and natural law jurisprudence and to the perceived subjectivity of Warren Court jurisprudence, there emerged a cadre of legal academics who set out to rescue judicial decisionmaking from these threats. The result was the legal process movement of this era. While the legal process school describes a large and diverse collection of academic agendas, the school can be described as a project following four basic tenets: (1) a focus on neutral principles as guides to judicial decisionmaking, (2) a focus on reasoned elaboration as a method of adjudication, (3) a focus on comparative institutional competence in considering which institutions and processes ought to be employed in legal decisionmaking, and (4) a focus on restrained innovation in the implementation and development of law and legal reasoning.

The focus on neutral principles grew out of the legal realists' critique of judicial decisionmaking. In its strong form, legal realists decried the courts' tendencies toward inconsistent, unprincipled decisionmaking. Legal reasoning was, critics argued, at least unpredictable and at most nihilistic and driven by judges' personal ideologies. Scholars working in the legal process tradition, most notably Herbert Wechsler in his influential article "Toward Neutral Principles of Constitutional Law," reacted decisively to legal realists' somewhat fatalistic view by offering the insight that there are durable legal principles worth following. These principles are drawn from various sources including legal texts, earlier decisions applied through stare decisis, and general legal principles. Moreover, the task of the judge in adjudication is to recover these principles and to apply them in a neutral, principled way.

Neil Duxbury argues that this strain in legal process theory echoes classical legal thought in its rigid adherence to principled decisionmaking; therefore, he suggests, there is a fundamental connection between Langdellian formalism and process theory. Upon closer reflection, however, the differences outweigh the similarities. Whereas Langdellian classical legal thought emphasized logically coherent decisionmaking and syllogistic reasoning, the emphasis in legal process theory is on reason and neutral principles and not on the uncritical application of logical reasoning to legal disputes. Process theorists were dissatisfied with Langdell and his disciples on the one hand and with Karl Llewelyn and his fellow legal realists on the other.

Related to this emphasis on neutral principles is a focus on reasoned elaboration in adjudication. Process theorists maintained a scrupulous faith in reason. They favored a system of law in which legal institutions would make and apply law in a deeply analytical, transparent, and purposive way. Here the key intellectual figure was Lon Fuller. In analyzing the "forms and limits of adjudication" and in tracing through the judicial reasoning process with the use of his famous hypothetical, the "Case of the Spelunchean Explorers," Fuller brought to life his conclusion that courts were well situated to resolve cases and further the sound development of law through fidelity to reason. This system of reasoned elaboration was juxtaposed against what process theorists regarded as the excesses of the jurisprudence of the era, especially the "incoherent" decisions of the Warren Court. For the most part, these theorists demurred on questions concerning the desirability of the results reached in cases such as brown v. board of education (1954), baker v. carr (1962), and miranda v. arizona (1966), decisions that obviously touched ideological nerves in the body politic. Rather, process theorists criticized these and other decisions for failing to accord with either neutral, principled decisionmaking or the recommended process of reasoned elaboration.

A third tenet of process theory is a focus on comparative institutional competence. In their legal process materials, Hart and Sacks offered through various extended examples and commentary an approach to legal reasoning and decisionmaking in the context of adjudication, legislation, and administration. Hart and Sacks began with the premise that law is made and applied in many different institutional contexts; they developed an analysis not only for the use of courts, legislatures, and administrative agencies in carrying out their functions, but also for decisionmakers in assessing and evaluating the strengths and weaknesses of different institutions. A key assumption in this normative enterprise is that the legislature—the key lawmaker in a democratic polity—is made up of "reasonable persons pursuing reasonable aims reasonably." From this assumption, process theorists derived a structure of circumspect institutional power in matters concerning, for example, statutory interpretation and the development of the law through common law reasoning. They insisted on attention to the question of which institution is best suited to decide a particular dispute. Beyond offering rich comparative institutional analysis, perhaps the main contribution of Hart and Sacks's legal process enterprise is the intellectual spotlight it shines on the multiple sources and functions of law in modern society. In this respect, it provides a bridge to the law and society movement that emerged somewhat later as a significant enterprise emphasizing, among other things, the role of law in action and the complementary and competing institutions of legal decisionmaking in the modern era.

A fourth and final tenet of legal process theory is restrained innovation in the making and application of law. Process scholars emphasized the limits of adjudication and also the limited capacities of all legal institutions to move forward with legal change. In his influential Holmes lectures, The Bill of Rights (1958), Judge learned hand built upon the foundations of process theory in counseling caution on the part of judges in deciding constitutional cases. Hand's message was that courts ought to be extremely circumspect in the face of social and political change. Restrained innovation is counseled not merely by a particularly narrow conception of the judge's proper role but also by the anticipation of adverse effects of unnecessarily ambitious judicial creativity. In offering faith in reason and attentiveness to process values, scholars working in the legal process tradition hoped to elide some of the more serious consequences that, in their view, plagued more dynamic, expansive approaches to legal interpretation.

The legal process movement came under substantial criticism in the 1970s and 1980s. Scholars noted that there was an inadequate positive or empirical basis for process theory. In particular, the assumption of reasonable persons pursuing reasonable aims reasonably was regarded as quaint and unrealistic. Moreover, process theorists were criticized as having a too-crabbed picture of law as an instrument of social engineering. Finally, prominent critics of process theory, such as Ronald Dworkin on the right and the critical legal studies movement on the left, maintained that process theory ultimately masks substantive outcomes. The test for the utility of the theory, therefore, was whether it produced favorable substantive ends.

Perhaps the principal impact of the legal process movement was on the judges and Justices who came to the bench having been influenced by their legal process–inspired teachers in the 1960s and 1970s. The emphasis on restrained innovation and on reasoned elaboration is especially notable in the Supreme Court's contemporary constitutional and statutory interpretation jurisprudence. At the same time, these proceduralist patterns of restraint are in tension with strains of both liberal and conservative activism in modern judicial decisionmaking.

Daniel B. Rodriguez


Duxbury, Neil 1995 Patterns of American Jurisprudence. Oxford, England: Clarendon Press.

Fuller, Lon L. 1949 The Case of the Spelunchean Explorers. Harvard Law Review 62:616–645.

——1978 The Forms and Limits of Adjudication. Harvard Law Review 92:353–409.

Hand, Learned 1958 The Bill of Rights. Cambridge, Mass.: Harvard University Press.

Hart, Henry M., Jr. and Sacks, Albert M. 1994 The Legal Process: Basic Problems in the Making and Application of Law, William Eskridge, Jr. and Philip Frickey, eds. St. Paul, Minn.: Foundation Press.

Peller, Gary 1988 Neutral Principles in the 1950's. University of Michigan Journal of Law Reform 21:561–622.

Vetter, Jan 1983 Postwar Legal Scholarship on Judicial Decision Making. Journal of Legal Education 33:412–423.

Wechsler, Herbert 1959 Toward Neutral Principles of Constitutional Law. Harvard Law Review 73:1–35.

White, G. Edward 1973 The Evolution of Reasoned Elaboration: Jurisprudential Criticism and Social Change. Virginia Law Review 59:279–302.