Legal Process

Author:Daniel B. Rodriguez

Page 1578

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...

To continue reading