The Legal Process School: Introduction

When the person-in-the-street thinks of "The Law," she (or he) tends to think of a
body of standards of conduct - rules or authoritative precedents - that prohibit
this and permit that. When a lawyer thinks of "The Law," however, she (or he)
thinks not only of a body of standards of conduct but also of a collection of
processes through which those standards are created and applied. These processes
are defined in the same way as the rules governing conduct: by legislation, by rule
makers acting under delegated authority, by court decisions, and sometimes by
constitutions. Some of these stipulated processes consist of details - which court,
among all those that have jurisdiction, is the one with proper venue for this
particular case? - and some of them embrace very large issues - do the courts as a
whole have power over this particular subject, or is it a matter that belongs
instead to the legislature?

Given that the law consists both of standards of conduct and of the processes
through which such standards are created and applied, which of these sounds the
dominant note and which the subordinate? Many kinds of legal argument assume that
the rules of conduct are primary, legal processes secondary. The law should protect
members of society against fraud; therefore the processes of the jury should be set
up so that frauds are, as well as may be, accurately detected. But it is quite
possible to frame arguments based on the contrary structural supposition. Juries
can only accurately determine certain kinds of issues; therefore the rules
protecting members of society against fraud should be written in a way that will
send to juries the kinds of questions they will be good at answering.

Often, perhaps usually, the authoritative legal sources will not specify which of
these points of view is the correct one. For example, here is one of the most
familiar texts in all of American law, the second sentence of the Fourteenth
Amendment of the federal Constitution:

No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
Now one possible reading of this text is primarily as a guarantee of equal
substantive legal rights, whatever they may be. If that is so, then the due process
clause can be seen as stating a subordinate assurance of fair procedure for
determining the presence or absence of legally established rights. At times the
Supreme Court has read it in just that way (Board of Regents v. Roth, 408 U.S. 564
(1972)). But another possible reading is to view the whole passage as protecting
the various processes of a procedurally fair society: the first clause as a
protection of national rights in a federal society and the second as a guarantee of
fair adjudicative procedures. On that view, the third clause, the equal protection
clause, can be seen not as a guarantee of formal equality, but rather as
authorizing judicial intervention against legislative (or other) governmental
action in which a majority unfairly gangs up on a minority unable to protect itself
through normal political processes. And at times the Supreme Court has said just
that (U.S. v. Carolene Products Co., 304 U.S. 144, 152-53 n. 4 (1938)).

The fundamental proposition of adherents of what came to be called "the legal

process school" of American jurisprudence is that the legal system of the United
States is best understood as being predominantly a structure of decision-making
processes, and only secondarily a collection of particular substantive rights.
This, it is claimed, is true as a descriptive matter: many apparently substantive
rules will, on close analysis, prove to embody, or at least to have been profoundly
shaped by, the requirements of process. More broadly, the structural elements of
the system will prove to be rules allocating authority to make decisions among
lawmaking institutions rather than rules defining substantive rights and duties. It
is also, it is claimed, desirable as a prescriptive matter: because the American
legal system most fundamentally consists of procedural, rather than substantive,
norms, it can at one and the same time embody the great traditions of the law and
yet be neutral among the plurality of visions of the good life that are legitimate
in a liberal society and that change with shifting political tides. Viewed in this
way, the legal process approach can legitimately claim to be the modern heir of the
traditional claim that all of American law is ultimately conditioned by the
structural features of the federal Constitution.

As used in modern legal discourse, the term "legal process school" refers to a
group of thinkers who began their work a bit before, or in most cases just after,
the Second World War. In that historical context, legal process analysis can also
be understood as in part a response to the claim of some of the scholars of the
1920s and 30s - the legal realists - that in law there is "no there, there"; that
legal questions present nothing more than the clash of social interests or at best
the application of social engineering. The "there" that is "there," says the legal
process adherent, is the "there" of legal institutions which, in their ordinary
workings and interactions, serve to tame the clash of interests and to bring
justice to what would otherwise be only a quest for political dominance.

Finally, by emphasizing the importance of institutional arrangements, the legal

process school reduced the apparent gap between what sociologists and political
scientists said about the law and what lawyers themselves said. What seemed to
others to be �outside� of �the law� � because the law was conceived as a body of
substantive rules � was in fact �inside� � because the law was both deeply
influenced by, and helped structure, the actual social and political workings of
major institutions. Moreover, the connection between these institutional forces and
the decision of particular matters was a subject as to which lawyers, by their
training and experience, could rightly claim superior knowledge and expertise.

The Legal Process School: Central Tenets

To see what kinds of issues are brought forward in legal process reasoning, we can
consider this straightforward question: when should a contract be enforced by a
decree of specific performance? One possible way to reason about this question is
to emphasize what we suppose would be the understandings of the parties. When would
they have agreed to specific performance, and when would they have limited the
remedy to damages? Another possible way is to emphasize the desire to compensate
the innocent party. When would the routine damage remedy, based on market values,
suffice, and when would it be likely that subjective, non-market values were
involved? (Law and economics scholars often ask questions like these. ) If we
approach the matter from a legal process perspective, however, we emphasize the
institutional differences between the damage and specific performance remedies. Not
only the formal differences - damages historically were awarded by law courts
sitting with juries, specific performance by equity chancellors sitting alone - but
more importantly the functional ones. Since decrees of specific performance require
specified acts, they are often more coercive than awards of damages and can require
considerably more judicial involvement to ensure compliance with the decree. There
is, indeed, considerable evidence that functional reasons like these form the basis
for the bulk of cases - such as many personal services contracts - in which
specific performance is refused. And even in situations in which specific
performance is routinely granted, a similar analysis may be lurking. Perhaps the
archetype of the specifically enforceable contract is the land sales contract,
usually rationalized on the basis that every plot of land has unique attributes, so
damages will never be compensatory. But is it irrelevant that the decree requires
for its fulfillment only the simple act of signing a deed, or that, in many
jurisdictions, even that act need not be coerced because the judicial decree can
itself be registered as a land transfer? In this situation it is, indeed, easier
and simpler to award the equitable decree that it is to measure damages.

This example is rather straightforward, because we are only analyzing alternative

possible responses from a single legal institution, the courts. The legal process
approach made its name, however, by its willingness to consider, and its apparent
ability to answer, complex legal questions in which more than one, perhaps several,
legal institutions are involved.
Questions comparing the competencies of various legal institutions arise starting
from the very first day of law school. For example, in considering the proper scope
of a court's power to overrule one of its precedents, one has to consider the pros
and cons of the alternative of leaving revision to the legislature. But - as the
legal process school taught us - there is more to the institutional structure than
this simple dichotomy of courts and legislatures. For example, the ability of
people to order their own affairs through use of the rules of contract and property
is also -- because it depends on legal rules and legal enforcement -- a legal
institution. When should private ordering prevail, when the courts, when the
legislature - these questions concerning the comparison of various institutional
possibilities are endemic both in the law and in the first-year law school
curriculum.
What is probably the archetype of legal process analysis, however, concerns the
relative place of an institution little met in the first year of law school,
although familiar enough in later years and, one might add, in practice: the
administrative agency. It is no historical accident that the legal process school
of thought developed in and after the New Deal. Legal process analysis is
responsive to all of the outstanding legal -- and political -- developments of the
1930's: the explosive growth of law regulating the economy, especially on the
federal level; the implementation of that law through a myriad of new agencies; and
the demise of the Supreme Court's effort (under the guise of "substantive due
process") to confine regulation within the thought processes of the common law
tradition. These developments created a general sense of need for a new analysis of
the role of the law, and in particular they signaled the demise of the existing
approaches to defining the various institutions of government. Earlier, less
intrusive forms of regulation had been analyzed in terms of the formal
characteristics of the three branches of government: the legislature made the
fundamental policy choices, the executive filled in the details as part of
enforcement of the law, and the judiciary kept the executive within its clearly
delegated authority. This traditional analysis, applied to the newly created
regulatory agencies, was seen to be a masquerade. The new agencies seemed to
combine the attributes of all three constitutionally-named branches and to have
vast power. While they seemed to be necessary, they could not be justified in terms
of older theories.

The most famous effort to fill this justificatory void - and arguably the first
major work of modern legal process analysis - was The Administrative Process,
published in 1938 by James Landis, the Dean of the Harvard Law School who had been
a commissioner on the Federal Trade Commission and Chairman of the Securities
Exchange Commission. Landis argued that "[t]he administrative process is, in
essence, our generation's answer to the inadequacy of the judicial and legislative
processes."[1] Much of the argument focused on specific features of the traditional
processes that ill-suited them for economic regulation. For example, judges (but
not legislators) were hampered by the fact that they only got involved with that
comparatively-speaking small number of instances brought to their jurisdiction by
private litigants. Administrative agencies, by contrast, could investigate and
initiate the proceedings they wanted. But Landis had a broader theme as well: the
far-reaching, general jurisdiction not only of the judges, but of all of the
traditional branches of government, meant that they became "jacks-of-all-trades and
masters of none".[2] The personnel of the administrative agencies, by contrast,
were experts. And the problems of modern government, Landis argued, were primarily
problems that would yield to technical expertise; the task of regulation was
managerial rather than a matter of rights and wrongs. As it turned out, most of the
leaders of the regulatory bodies were not technical experts, but lawyers and
political figures -- though agencies hired economists, engineers, and so forth. But
the point was not so much their training as the structure in which they worked: the
expertise came from the institutional arrangement itself. Just because the agency
had continuing responsibility for regulating a particular industry - because, for
example, the S.E.C. dealt with securities and securities exchanges but not with
labor relations, or communications law, or whatever else - the agency developed
knowledge about that industry, its trade practices, economics, and so forth, that
no other branch of government could match. Consequently, when the regulatory
problem to be solved depended, as it so often did, on a pragmatic judgment rather
than an abstract principle, the agency had a comparative advantage, an
institutional competence, that made it the instrument of choice.

In subsequent years, Landis's understanding of the administrative agency in terms

of its particular institutional process was translated into many legal doctrines,
especially regarding the relationship between administrative agencies and courts.
The starting point was the traditional ideal that it was the courts that were
charged with the responsibility of seeing that other agencies of government
remained within the statutory and constitutional limits on their authority. This
function of reviewing the work of administrative agencies was in most cases lodged
by statute in the federal courts of appeals. This suggested as an initial analogy
the relationship between appellate courts and trial courts. But the analogy had to
be reconsidered because it was not a trial court, but rather an "expert"
administrative agency, that the appellate court was reviewing.
In strictly judicial proceedings, questions of fact are for the trial court, to be
set aside only if the trial court's finding was arbitrary and quite outside of the
evidence in the case. Questions of law, on the other hand, are reviewable de novo
by the appellate court, which can freely substitute its judgment for that of the
trial judge. On the factual side, it was established after some skirmishing that
the relationship of administrative agency and reviewing court would be similar to
that of trial court and appellate court. Finding facts was, after all, a routine
task for the agency and, insofar as review was lodged in an appellate court, it had
no mechanism for taking evidence at all.

Who should decide what the law was, and how it should be applied to the basic
facts, presented much more difficult questions. Congress, in establishing agencies,
often spoke in the most general terms. The Federal Communications Commission, for
example, was given the task of awarding frequencies to radio stations according to
"the public convenience, interest, or necessity." Now, it was a usual task of
courts to bring general law down to specifics; that was part of their expertise. At
the same time, insofar as the solution to a practical social problem was at stake,
the expertise of the agency, which lived with the problem day-in-and-day-out, might
have a greater claim. What developed was a complex multi-factored test for
determining which institution, agency or court, was more competent to answer the
particular question presented. Among the factors to be considered was whether the
issue presented had a large technical or scientific content, or not; whether it
could be resolved from research in traditional legal materials, or not; whether the
issue raised questions of the intersection of this administrative program with
other programs, or not; whether the issue went to the scope of the agency's
jurisdiction, or not; whether the agency had followed a consistent course of
interpretation, or not; whether the agency had been involved in drafting the
underlying legislation, or not; and so forth. The important point for present
purposes is not the details of the test, but rather that the relative roles of the
courts and the agencies were being understood in rather functional and contextual
terms. So viewed, agencies often were given more deference for their decisions than
trial judges were. Or, to put the same matter in a different way, agencies often
got to settle - settle in the sense that appellate judges would defer to their
decisions - issues which, in the trial judge-appellate judge context would be
denominated questions of law, as to which the appellate tribunal would feel free to
make its own judgment. This was a substantial departure from traditional, abstract,
separation-of-powers conceptions, in which (in the words of John Marshall) "It is
emphatically the province and duty of the judicial department to say what the law
is."[3]

This idea - that various aspects of complex legal problems should each be settled
by the institution with the greatest practical competence to decide it - was a
cornerstone of the legal process approach. It was carried forward in the most
famous expression of legal process reasoning - from which, indeed, the school of
thought takes its name -a set of law school teaching materials: The Legal Process,
by Henry Hart and Albert Sacks. This has been called "the most influential book not
produced in moveable type since Gutenberg"[4] because although the materials, first
issued in 1958, were widely circulated and used in many law schools, they were not
published in hardcover until 1994, after the authors' deaths. Until then, they
circulated in typescript form, reproduced by a copy machine.

Exemplary of the work was its well-known "Problem No. 1. The Significance of an
Institutional System: The Case of the Spoiled Cantaloupes."[5] The problem
presented a true case that ultimately reached its resolution in L. Gillarde Co. v.
Joseph Martinelli & Co., Inc., 169 F.2d 60 (1948), amending 168 F.2d 276, cert.
denied, 335 U.S. 885. The fact pattern was straightforward. A wholesaler agreed to
buy from a distributor a carload of cantaloupes already en route to market by
train. Although they had been officially graded "U.S. No.1" when loaded, they
arrived almost completely spoiled. The train had been delayed; but the cause of the
spoilage was a rot which, although it had infested the melons while they were in
the field, was still invisible when they were inspected and loaded on the train.
The buyer refused to accept the melons, and the seller demanded reparations. The
buyer in turn claimed its damages. What should the outcome be? What do you think is
a just result under the circumstances?

As Hart & Sacks presented it--in 60 pages of materials, questions and analysis--
the solution to this seemingly straightforward commercial problem implicated nearly
every existing legal institution: the parties themselves in the terms they put in
their contract; state legislatures, which enacted the Uniform Sales Act
(predecessor of Article II of the Uniform Commercial Code); state courts that
rendered decisions construing that Act; the federal Congress, which, in 1930,
passed the Perishable Agricultural Commodities Act; a federal administrative
agency, the Department of Agriculture, which issued regulations defining various
trade terms and handed down administrative decisions in prior reparations cases and
in this very case; and ultimately the federal trial and appellate courts that had
to review the agency's decision.

It might be thought that this proliferation of legal materials would make solution
of the problem impossible, except by means of an arbitrary act of will. After all,
each of these sources is itself subject to ambiguity, and when ambiguity is piled
on top of ambiguity, surely chaos must result. But the point of the problem is
that, in fact, exactly the opposite happens. Some sources can provide that other
sources take precedence. For example, the Sales Act allows parties to vary its
rules through contract. More importantly, some sources can serve to resolve the
ambiguity of other sources. The contested terms of the contract, ambiguous standing
alone, become clear in light of the administrative regulations that serve to define
the meaning of terms used in simple contracts of this sort, unless otherwise
specified by the parties. Finally, where an unsettled issue really is presented,
the law can choose who will choose. In the cantaloupes case, the one open issue on
which the case finally turned was whether the buyer, by wrongfully rejecting the
spoiled cantaloupes, had forfeited its remedy for breach of warranty. On rehearing,
the Court of Appeals finally concluded that it should dcfer to the expertise of the
Department of Agriculture, which had decided against the buyer on the ground that
it was important to maintain a strong sanction against buyers' wrongful rejection
of shipments, because it often led to fruit which had been shipped long distances
becoming commercially worthless.

(Although this problem thus ends on a note of deference to the administrative

agency, Hart and Sacks were by no means uncritical proponents of administrative
expertise. A considerable portion of the problem is devoted to displaying the flaws
in the agency's handling of the case, primarily its lack of transparency--its
failure to reveal in its regulations or prior decisions how alternative possible
rules would impact on the fruit and vegetable trade. The authors did not endorse
administrative fiat, but insisted that the agency ought to provide a reasoned
analysis linking its decision to its expert knowledge of the regulated industry. It
was only after the Department of Agriculture explicated its decision in an amicus
brief submitted to the Court of Appeals on rehearing that the court saw the
importance of deferring to the agency.)

Hart and Sacks put the point of "The Case of the Spoiled Cataloupes" in a follow-up
question to the case:

The account of the episode which has been given has emphasized the vagueness and
uncertainty, for many purposes, of many of the legal arrangements involved. But is
it not defensible to conclude that this complex of "loose artificialities"
nevertheless articulates tightly when brought to bear upon the concrete facts of an
actual situation, leaving only a single question which is fairly open to a
reasonable difference of opinion - namely, the question on which the court of
appeals changed its mind on rehearing [and on which it ultimately decided to defer
to the agency]? If you think this is true, consider its implications with respect
to the nature of the legal process.[6]
This view, that various legal institutions can help each other give content to the
appropriate resolution of a particular problem, that they "articulate tightly," is
the answer of the legal process school to the profound conundrum that was the
heritage of the realists: if legal judgments, and in particular judicial decisions,
are not governed by a structure of neutral and logically connected rules and
categories, how can they be anything other that a matter of the politics, or even
the whim, of the person with the power to decide? And if that is so, what is left
of the certainty and predictability, not to say the rationality and justice, of the
legal system? Legal process theorists maintained that if the institutional
structure allocated questions for decision to institutions that were well designed
to decide them, if each institution did its job properly, and if each one--
particularly the courts--did not try to invade the province of the others, then the
operation of the legal process would ordinarily produce decisions that were
determinate and right.

The plausibility of this answer depends in part on an assumption that all of these
institutions operate in the same realm of discourse, that they can, in a fairly
deep way, speak to each other. The necessary lingua franca, according to the legal
process school, was provided by the concept of purpose. For writers in the 'forties
and 'fifties, purpose was, first of all, a way in which an important antinomy
between formalism and realism could be overcome. The formalists claimed that, while
legislatures were free to operate on the basis of "willful" (political) choice, the
essence of judicial thinking lay in inductive and deductive logic; the realists
claimed that such logical operations could not "bind" the judges or determine their
decisions, and thus that the core of legal thinking, even for the judges, lay in
acts of willful choice. For those who wanted to get beyond this opposition, who
wanted to see legal thought as made up of both reason and will, purpose was the
answer. "Purpose" (as contrasted with "whim" or "desire") connoted thoughtfulness,
planfulness and stability while at the same time (when contrasted with "logic" or
"reason") it connoted action and determination . For the legal process theorists,
heirs of the New Deal conception of law as "social engineering," the notion of
purpose seemed to give a fixity and stability to language that the realists had
shown was absent from the formal categories of legal thinking.

Purpose was also - and here was perhaps its principal advantage - a way in which
legislative action as well as judicial thought could be described. For even after
judges stopped policing (under the rubric of "substantive due process") the motives
behind ordinary legislative action, it was still true that legislators were
supposed to be pursuing the public interest when voting for statutes. Insofar as
their action was legitimate, it ought to represent not just an act of political
will, but an act of will directed toward a public goal. It ought, in other words,
to have a purpose. A maxim of Hart and Sacks was that in construing statutes, the
court "should assume, unless the contrary unmistakeably appears, that the
legislature was made up of reasonable persons pursuing reasonable purposes
reasonably."[7] The same was true of the acts of other organs of government, like
administrative agencies. In short, all legally-relevant action could be seen as
purposive action. Correspondingly, various legal institutions were not insuperably
different in kind, but rather represented alternative ways in which society could
pursue its fundamental objectives. They could supplement each other, or substitute
for each other, according to their particular advantages or disadvantages in the
situation presented. Indeed, it was through the reasoned elaboration of the
purposes implicit in the law by all legal institutions within the sphere of their
competence, that institutional fidelity to the law was to be achieved.

In short, the central features of legal process thinking are: first, that the
fundamental structures of the law are legal institutions and their processes;
second, that allocation of decision-making tasks among institutions can be based on
their functional competency; and third, that the concept of purpose provides the
medium by which legal problems can move between institutions without losing their
identities.

The Legal Process School: Core Criticisms of the Approach

Are the claims made on behalf of this approach, or set of approaches, to the law,
valid? What might be said against the use of legal process reasoning?
The most intuitive counter-claim is the contention that legal process reasoning
leaves out a central question--perhaps the central question--of the legal
enterprise. It is all very well, it might be said, to allocate decisional authority
to this institution or that, or to work out the appropriate interrelationships when
more than one institution contributes to crafting the solution to a legal problem.
But when all is said and done, there is still a need for a method of deciding what
is right and what is wrong. To assume that mere functional requisites will
determine that issue, even within a known social and political context, is to fail
to appreciate the fundamental ideological, philosophical, and moral differences
there are in the world, and correspondingly the need, often, to have a basis for
taking sides. (On this view, it is no accident that The Legal Process is a product
of the 1940's and 1950's, so often described as a period of consensus politics).

For many later students of the law, the legal process school of the immediate post-
war years warranted this criticism particularly for its failure to contribute
intellectually to the movement for desegregation. This was not a question of
personal commitment; some, at least, of the legal process scholars were most
certainly political liberals dedicated to racial justice. The problem was that the
legal process approach did not seem to provide a useful basis for addressing the
issue.

Brown v. Board of Education, decided in 1954, is now such an accepted part of our
legal universe that it is hard to remember that it was a hotly contested decision
not just politically - that is obvious - but also jurisprudentially. The view of
Plessy v. Ferguson that "separate but equal" was consistent with the "equal
protection of the laws" had been based on a substantial, albeit formal, conceptual
argument, and a substantial, albeit not irrefutable, analysis of historical intent.
And it had been the law since before the 20th century began. The Supreme Court's
opinion in Brown did not seem to provide the necessary counterweight. Partly this
was because it rested on a claimed growth in psychological knowledge which was
empirically doubtful and of uncertain jurisprudential importance. But of more far-
reaching significance, the opinion in Brown never seemed to justify what the
Supreme Court clearly took it to mean. The emphasis throughhout the opinion was on
the consequences of segregation for education. The Court's announced holding was:
"We conclude that in the field of public education the doctrine of 'separate but
equal' has no place. Separate educational facilities are inherently unequal."[8]
However, in a series of decisions rendered in the next few years on Brown's
authority, and without further reasoning, it turned out that segregated public
beaches, golf courses, buses and parks had all also been outlawed. No explanation
for doing away with "separate but equal" as a general theory had ever been
presented. Had the Supreme Court simply exerted its power without adequate reason?
Legal process analysis clearly had something to say about that part of Brown and
its progeny that consisted of overruling Plessy v. Ferguson. Whether, once a court
becomes convinced that one of its precedents was wrongly decided, it should proceed
to overrule that precedent, or instead continue to operate under it until some
other organ of government changes the law, depends (on the legal process view) in
part on what processes for change exist in those other institutions. It could be
said, and it had been said, that since a statutory amendment could be passed by
Congress without great difficulty, the Supreme Court should continue to apply even
those interpretations of statutes it now thought wrong; whereas since a
constitutional amendment was extremely difficult to pass, the Court should itself
revise its previous, now understood as erroneous, constitutional decisions.
Statutory law might represent the ephemeral part of the legal order, and
constitutional law the permanent, but from the standpoint of the doctrine of stare
decisis the opposite was the case.

This was some help in thinking about Brown, but it hardly reached the core question
of what constitutes social and legal equality in relations among the races. Could
legal process reasoning offer nothing more? The Hart and Sacks materials, although
issued in 1958, had no discussion of either Brown or Plessy. And thus matters stood
when, in spring 1959, Prof. Herbert Wechsler (who had also been a collaborator with
Hart, in their well-known casebook, The Federal Courts and The Federal System)
delivered his much-noted Holmes Lecture at Harvard Law School: "Toward Neutral
Principles of Constitutional Law." Wechsler, speaking against the background of
nascent controversy about the "activism" of the Warren Court, began by asserting
the right, indeed the duty, of the Supreme Court to review the work of other
branches of government for constitutional validity. But in doing so, he said, it
was obliged to act as a court, which for Wechsler meant it was obliged to ground
its decisions not in power but in principle. Further, "[a] principled
decision . . . is one that rests on reasons . . . that in their generality and
neutrality transcend any immediate result that is involved. When no sufficient
reasons of this kind can be assigned for overturning the value choices of the other
branches of the Government or of a state, those choices must . . . survive."[9]

What this requirement of "neutral principles" meant was illustrated by several

examples, none more important or striking than desegregation. Wechsler brought out
the frailities of the opinions themselves, and then turned to the need to supply
the principle the Court had failed to articulate. Brown, he said, "must have rested
on the view that racial segregation is, in principle, a denial of equality to the
minority against whom it is directed; that is, the group that is not dominant
politically and, therefore, does not make the choice involved."[10] But, assuming
facilities equal in fact, this principle was not, for Wechsler, an adequately
neutral principle on which to ground judicial action, because it amounted to
accepting the interpretation of "separate but equal" suggested by one group rather
than another, in the face of a contrary determination made by the state
legislature. Viewed without this interpretive gloss - viewed truly "neutrally" -
the question of integration was more accurately stated in terms of association than
of discrimination. "Given a situation where the state must practically choose
between denying the association to those individuals who wish it or imposing it on
those who would avoid it, is there a basis in neutral principles for holding that
the Constitution demands that the claims for association should prevail?" As to
that question, Wechsler said, "I should like to think there is, but I confess that
I have not yet written the opinion."[11]

Wechsler's article drew many responses, none more pungent that Professor Charles
Black's "The Lawfulness of the Segregation Decisions." "Simplicity is out of
fashion," wrote Black, but "the basic scheme of reasoning on which these cases can
be justified is awkwardly simple. First, the equal protection clause of the
fourteenth amendment should be read as saying that the Negro race, as such, is not
to be significantly disadvantaged by the laws of the states. Secondly, segregation
is a massive intentional disadvantaging of the Negro race, as such, by state
law."[12] That, of course, was a contextual judgment, not an abstract one - but for
Black, that was its strength, not its weakness. "The issue is seen [by others] in
terms of what might be called the metaphysics of sociology: 'Must Segregation
Amount to Discrimination?' That is an interesting question; someday the methods of
sociology may be adequate to answering it. But it is not our question. Our question
is whether discrimination inheres in that segregation which is imposed by law in
the twentieth century in certain specific states in the American Union. And that
question has meaning and can find an answer only on the ground of history and of
common knowledge about the facts of life in the times and places aforesaid."[13]As
to the methodological complaint, that courts do not have a method for discovering
what the true social meaning of a practice is - or, at least, do not have a method
that can stack up against a declaration of a different meaning made by a
legislature - Black pronounced that the opposite was the real methodological task:
finding ways to make it legitimate for "the Court to use what it knows; any other
counsel is of despair."[14]

Now surely Black was not saying something about society that Wechsler did not know.
Nor was Black speaking from a markedly different political point of view. Wechsler
had introduced his own discussion of the desegregation decisions by saying that,
taken as a group, they "have the best chance of making an enduring contribution to
the quality of our society of any that I know in recent years."[15] What prevented
Wechsler from endorsing the decision with Black's simplicity, was his jurisprudence
- his assumption that as one institution interacting with others, courts (or at
least courts deciding constitutional issues) should only interfere with decisions
made by the legislature based on certain types of very abstract arguments. A
contextual sense of justice in the actual society was for other institutions to
pursue.

Whether a legal process analysis of Brown had to assume this form, is, for present
purposes, not the central issue. Surely the competence of southern legislatures of
that era to speak reasonably on racial issues could have been called into question
on legal process grounds. Indeed, Sacks had made a suggestion in that direction in
a short piece praising Brown, which had been published a few months after the
decision.[16] But for many at the time, and later, the inability of Wechsler's
address to "solve" Brown, compared to straight-talking articles like Black's,
showed that legal process thinking was not robust enough to be an overall approach.
Whatever contribution process thinking might make to legal theory, it had to be at
least supplemented - if not replaced - by a theory which dealt more directly with
substantive right and wrongs. And this point held, even if a different legal
process thinker allowed the courts to deal in different sorts of principles. It
would still be true that the theory could at most supply some formal criteria that
substantive standards would have to meet, rather than supplying the substantive
standards themselves.

A quite different critique of legal process thinking attacked its claim that
analysis of legal institutions could give interesting, useful, and determinate
results. What, beyond the catch-phrases that administrative agencies were "expert"
or legislative bodies were "democratic," was really being offered?

An example of what could be attempted by way of a more elaborate functional

analysis, was Lon Fuller's article "The Forms and Limits of Adjudication," written
in the late 1950's (although not published in full until after Fuller's death). The
most famous claim of this work was that the process of adjudication is inherently
ill-suited to solving what Fuller called "polycentric" problems. By this term he
meant problems in which many points of decision were interlocked, so that the
correct solution of any one issue depended on the solution for all the others.
Perhaps the most important example of what he had in mind was the system of wages
and prices, but he suggested that even deciding who should play what position on a
football team raised much the same issue. "It is not merely a matter of eleven
different men being possibly affected; each shift of any one player might have a
different set of repercussions on the remaining players: putting Jones in as
quarterback would have one set of carryover effects, putting him in as left end,
another. Here, again, we are dealing with a situation of interacting points of
influence and therefore with a polycentric problem beyond the proper limits of
adjudication."[17]

How did Fuller determine that adjudication could not handle problems like these? He
was not merely describing what does happen, for part of his point was that in fact
polycentric problems were being tackled through adjudicatory processes - especially
in administrative agencies - when they ought to be handled by one of the two
processes appropriate to these types of problems, managerial direction or contract
(that is, private ordering). Nor did he have empirical evidence of the ill results
of this supposed bad fit. Rather, he thought that a rationalized analysis of
institutional form and purpose was possible.

Social institutions, Fuller said, should be seen as rational efforts to pursue

social purposes. Adjudication therefore should pursue those purposes that can be
sensibly achieved through its particular institutional process. The defining
characteristic of adjudication, he continued, is participation by the affected
parties through the presentation of proofs and reasoned arguments. From this
starting point, many of the commonly noted characteristics of adjudication could be
derived. The centrality of principles in adjudication is based on the parties' need
to know which arguments are sound, which proofs relevant. The role of the judge in
adjudication is to be an official who bases his or her decision on these kinds of
consideration. The tendency of adjudication to enunciate "rights" is in turn
derived from this need for principled decision. And so, too, could be derived the
limits of adjudication. "Adjudication is not a proper form of social ordering in
those areas where the effectiveness of human association would be destroyed if it
were organized about formally defined "rights" and "wrongs."[18] In particular,
adjudication is not suited to polycentric problems, where the interactive give-and-
take cannot be sensibly organized in this way because there is no identifiable
standard for the parties' arguments and proofs to focus on.

"The Role of the Judge in Public Law Litigation," written by Professor Abram Chayes
in the mid-1970's, was a response both to this conclusion and to this approach.
Chayes set forth two models of civil litigation, a "traditional" conception
(typified, say, by a claim for damages for breach of contract) and a "public law"
one (such as a claim for school desegregation or prison reform based on statutory
or constitutional grounds.). In the traditional model, he said, the lawsuit is bi-
polar, is closely controlled by the parties, revolves around a single transaction
or occurrence that is alleged to have happened in the past, and yields a remedy
derived rather straightforwardly as compensation for the violation. In the public
law model, there is a sprawling group of parties, the focus is not only on the
facts of the past but predictions of how institutions will operate for the future,
and the remedy, although based on a finding of a "wrong," is directed toward the
future governance of the institution rather than directly measurable redress.
Judges necessarily exert more control. Especially in the remedial phase, they may
become mediators between contending forces, legislators filling out the details of
broad constitutional or statutory commands, and even managers of the structure of
vital social institutions. In short, in the institutional reform cases Chayes
emphasizes, judges are inherently addressing polycentric problems. "Professor Lon
Fuller," Chayes wrote, "has argued that when such functions are given to the
judiciary they are parasitic, in the sense that they can be effectively carried out
only by drawing on the legitimacy and moral force that courts have developed
through the performance of their inherent function, adjudication according to the
traditional conception."[19] But Chayes had a different view. "I am inclined," he
said, ". . . to urge a hospitable reception for the developments I have described
and a willingness to accept a good deal of disorderly, pragmatic institutional
overlap."[20]

Partly, Chayes's argument was historical: the kinds of things modern federal trial
judges were doing in institutional reform cases had a considerable pedigree if one
looked to older equity jurisprudence developed, for example, in the reorganization
of over 1,000 railroads beginning in the 19th century. Partly, it was based on
particular, perhaps ad hoc features of adjudication as it had developed in the
United States: for example, the ability of judges to address specific, local
problems without having to work through an administrative bureaucracy. Partly, it
asserted the importance of a pragmatic assessment of results: let us see where this
type of judicial action solves important problems and where it does not, rather
than deciding the matter on an abstract basis. And partly it was a political
argument: the traditional conception may have solved the social problems of the
19th century, but the active role given to government in general in the 20th
century required a correspondingly active judiciary.

Chayes's article has been widely cited, but its particular conclusions need not
detain us. What is significant here are two methodological differences between
Chayes and Fuller. First, they had very different approaches to characterizing the
institution of adjudication. For Fuller, institutions were to be known by a
defining characteristic or purpose. By so proceeding, "we can distinguish
adjudication as an existent institution from other social institutions and
procedures by which decisions may be reached."[21] For Chayes, what institutions
were at any particular time was the result both of a plurality of purposes and of a
mass of historical accretion. As a result, they were much more plastic; it made
sense to say that courts could legitimately operate according to both the
traditional model and the public law model, as circumstances directed.

Second, the two authors had very different approaches to the sources of legitimacy
in institutions. For Fuller, the moral force of legal institutions came from their
procedural imprimatur, from the carrying out of their defining purpose. For Chayes,
the moral ground was ultimately substantive: "judicial action only achieves such
legitimacy by responding to, indeed by stirring, the deep and durable demand for
justice in our society."[22]

Chayes was quite clear that by attacking the contention that courts should be
confined exclusively to the traditional conception of adjudication he was opposing
Hart and Sacks, Fuller, and Wechsler.[23] It was not that he was saying that only
substance, not process, mattered; self-evidently he thought that the roles that
judges played did matter. But if Chayes's approach was right, there could not be a
theory of legal institutions that had the kind of resolving power the legal process
school claimed. Legal institutions could not be sharply defined in terms of a
limited set of functions. Which of the particular institutional clusters of
historical accretions and scattered purposes was best suited to addressing a
particular problem would always be a contestable issue of better and worse, more or
less. Moreover, the choice among them would ultimately be validated (or not) by the
substantive outcomes that were produced, so that procedural choices could not be
made without some conception of substantive justice. The claim that what was
fundamental was process, not substance, was upside down. Even if Chayes was only
partly right, the consequence was substantial. For even if there was only "some
truth" in his approach, the claim that legal process thinking could by itself solve
legal problems was gone.

A critique of the use of the idea of purpose by the legal process school might
follow an analogous path. This can be seen by thinking about the core example of
"purpose" as presented in the Hart and Sacks materials: the attribution of purpose
to a statute. As an empirical matter, it seems to be an inadequate description of
the legislative institution to view legislation as embodying coherent public
purposes. There is no need for a sophisticated political science to recognize that
different legislators pursue different goals, so that a statute as a whole is more
likely to represent a compromise than a consistently developed approach. Indeed, it
is apparent that at least some legislators some of the time are pursuing other than
public purposes altogether. The Legal Process materials escaped from this
difficulty by adopting a special conception of the "purpose" at issue. "Purpose"
was not to be found in, but rather attributed to, the statute. The proposition that
"the legislature was made up of reasonable persons pursuing reasonable purposes
reasonably" was a stance to be adopted in construing the statute rather than an
empirical fact. But if purpose was to be attributed rather than inherent in the
statute, some additional criterion was needed by which to decide which of the many
purposes in fact in play were to be chosen for attribution to the reasonable
legislators and thereby to the statute. Hart and Sacks suggested a functional
approach (that, incidentally, dates back to Lord Coke): "a close look at the
`mischief' thought to inhere in the old law and at `the true reason of the remedy'
provided by the statute for it."[24] But that formulation seems to assume that all
statutes are merely interstitial--incremental improvements in a system that was on
the whole functioning well. This Panglossian view of the status quo, while perhaps
appropriate to the comfortable 1950s, could not withstand the fundamental social
critique posed by the civil rights movement, the war on poverty and the anti-Viet
Nam war agitation of the 1960s and `70s.

Most law professors today think there is a lot of truth in Black's response to
Wechsler and Chayes's response to Fuller. They think that Brown v. Board of
Education was rightly decided and not hard to justify in substantive terms; that
legal institutions do not have a single defining purpose but rather are
multifarious cultural and historical constructs; that sometimes the law must deal
with serious conflicts of value. They conclude that it will not suffice to have a
purely procedural theory of justice and institutional legitimacy.

The Legal Process School: Where Does All That Leave Us?

In other words, most law professors today do not believe that legal process
thinking can solve all the problems of the law. It does not follow, however, that a
purely substantive theory of justice will suffice.

How would the legal system operate if we had no criteria of institutional fitness
or legitimacy? We can imagine at least two possibilities. First, there might be no
allocation of final authority to make decisions. Whichever institution happened to
get a problem could decide the matter on substantive grounds as it saw fit. If, as
a practical matter, two or more institutions had to be involved, each could decide
the issue independently. Which decision would prevail would depend on who got the
final word in a particular case. So, if an environmental statute had to be
interpreted, the executive branch, in the form of the Environmental Protection
Agency, would do it first as a matter of its rulemaking authority. If by statute or
otherwise the consequences of the agency's decision were brought before a court of
proper jurisdiction and venue, the court would get to decide the matter all over
again using its independent judgment. If there were an appeal to a further court,
that court would then get to do what it wanted to. Then, if the statute needed to
be implemented, for example by the issuance of permits, the authority that issued
the permits - perhaps the E.P.A. again - would get to use its judgment on the
governing law, quite independent of what the judges had to say.

This way lies madness. In a system of government and law as complicated as exists
in the United States - with both a vertical division of power among cities, states,
and the federal government, and a horizontal separation of powers at each level -
some rule or rules of institutional authority and finality are a must. We must
have, in the term used by Hart and Sacks, principles of "institutional settlement".

Second, again assuming we had no theory of institutional fitness or legitimacy, we

could imagine rules for allocating authority that had no substantive basis, but
instead were purely formal. This has been tried at times. During the 1980's the
Supreme Court of the United States issued several opinions in which allocations
among the branches of the federal government were justified in terms of formal
definitions of what constituted "executive," "legislative" and "judicial" action.
But these cases, and this approach, were widely criticized on three grounds. Many
powers of government are not easily categorized. For instance, is setting a rate
for a regulated utility an executive act or a legislative act or a judicial act?
Historically, all three branches of government have, at one time or another, set
rates. Next, assuming the categories of action can be distinguished, the
Constitution itself did not rigidly separate them. The President (executive branch)
has the power to veto statutes (presumably a legislative power). Finally, the most
typical modern governmental form, the administrative agency, usually has all three
types of powers. If rigid, categorical separation were actually to be enforced,
much of American law and government would be overturned in an instant.

In short, if we take the complexity of the contemporary legal (and social) system
seriously, we need some way to allocate authority among the institutions that
comprise it, and it needs to be more subtle than any simple formal scheme can be.
This does not, of course, mean that it has to be the particular scheme adopted by
legal process thinkers of the past. For example, the current doctrine governing
deference by courts to decisions of law made by administrative agencies does not
embody the functional analysis of the legal process school, sketched above, and is
instead much more responsive to the possibility that what is at stake are matters
of political choice (Chevron, USA, Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984)). But because it allocates some tasks to courts and others to
administrative agencies, based on general features of these institutions, it is
still a theory of institutional interaction. These issues of institutional
competence cannot be resolved by a purely substantive theory of what the law should
be - by, for example, a purely philosophical theory of substantive law.

In this light, the legal process school was not so much wrong as a victim of the
familliar hubris of legal thinkers in mistaking their very important insights for a
complete account of the law. The enduring legacy of the legal process school is
that we must think seriously and systematically about the institutional components
of the legal system, whether as theorists, practitioners or reformers. It is not
enough to worry about substantive rules. The rights and duties they establish are
(or are not) made effective in the real world by the processes and institutions
entrusted with their implementation. Consequently, their very content ought to be
drawn with the process of implementation in view. At the same time, the critiques
of the school also leave a legacy: that institutions are to some degree
malleable;that we must attend to the rightness of substance, too. The issues raised
by the legal process school are more durable than the answers they gave.

Probably the best way for you to judge the truth (or not) of this "bottom line" is
by looking at some examples of process thinking as applied to some present-day
legal questions. As part of these materials you can find such analyses of the
problem of physician-assisted suicide, of the enforceability of contracts for
surrogate motherhood, and of the substitution of legally compulsory terms for the
parties' private arrangements.

For recent scholarly treatments of the legal process movement, you might want to
read William N. Eskridge, Jr. and Philip P. Frickey, The Making of The Legal
Process, 107 Harv. L. Rev. 2031 (1994) and Edward L. Rubin, The New Legal Process,
the Synthesis of Discourse, and the Microanalysis of Institutions, 109 Harv. L.
Rev. 1393 (1996).