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Legal Process
Valparaiso University School of Law
Dooley, Laura Gaston

Dooley- LEGAL PROCESS Spring 10

Formalism: Little thought to the social consequences. Notions of mechanical application of rules to facts before the court to arrive at the correct conclusion.

E.g., Pennoyer v. Neff… with its brightline formalism, it was appealing; but in reality, it was not practically applicable (social consequences)

Oliver Wendell Holmes—early critic of formalism. Law is a result of social struggle, and when trying to figure out the answer to a difficult conflict of people’s rights, policy analysis is essential, and consideration of the social consequences is necessary.

Precursor Ideas to the Legal Process Movement (Pre-WWII):

(1) Law is policy (Oliver Wendell Holmes).

a. Legal outcomes are policy choices made by judges, often driven by ideology, or by “who knows what”.

b. Roscoe Pound : Another anti-formalist scholar. Believed in sociological jurisprudence, policy science—there ought to be research into what the best policy should be, and law should follow that empirical research. He preferred legislation to judicial decisionmaking b/c legislation could best capture policy

c. Cardozo—creativity of judicial process. Law is not discovered by judges & applied; it is created. While creating law, sound policy should be considered.

d. Legal Realism: There is no determinate way to move from a rule or a legal doctrine or precedent to one inevitable result. They reject formalism’s very possibility. It is not possible to get from Rule X to a determinate outcome in a dispute, per Realism, rendering formalism a fraud. “It matters more what the judge had for breakfast than what the legal rule is.”

i. Advocacy: may be seen as a way to convince a judge to manipulate precedence; suggesting that we in the present do not believe that formalism applies.

e. Intermediate Perspective: Law may not be absolute, but there are parameters and constraints within which it functions. There are general principles which constrain both advocates and judges, even if there is not a predetermined outcome to the application of law.

(2) Law as institutional relationships. (1930’s…Great Depression…New Deal)

a. Institutional Competence. We should assign the legal task to the organ of government best able to handle it.

b. E.g., If you have an environmental complaint, to whom could you go?

i. Executive—Expertise: The EPA. It is expert and knowledgeable, has ability to research. However, the “cons” are that it is bureaucratic and slow-moving, and has political forces within its own administration, and the notion that agencies get “captured” by the fields in which they function.

ii. Judicial—Backward Looking & Compensatory: file a lawsuit. But those are backwards-looking, not forward to preventing further problem.

iii. Legislature—Forward Looking: try to get a statute passed to control the problem.

c. Law is a set of institutional relationships. Each branch interacts with the others and its actions affect the other branches.

d. There was a lot of optimism at this time about the government being able to do great things for people.

(3) Law as Reason. You can reject formalism, or the idea that a particular rule leads to a particular outcome, without throwing reason out the window.

a. There are constraints on what legal actors do, even if they aren’t completely present in a particular precedent.

b. The judge isn’t confined to a predetermined outcome, but he cannot act completely arbitrarily, either.

(4) Law is Fluid. (1940’s) It is not fixed; it is always changing.

a. Lon Fuller. Talks about law as sort of a story where what is and what ought to be are constantly being reshaped. Sort of like repeating a story from one person to another. The story you repeat is a combination of the story you heard, and your interpretation / perspective on the story which shapes how you repeat it to someone else.

(5) Law is Purposive. Law should fulfill its purpose, which is to better society and keep peace. It shouldn’t be arbitrary exercise of power.

The Creation of the Legal Process School

Hart & Sachs: Henry Hart developed a course at Harvard, Process of Law Making, where he hooked up with another professor at Harvard, Al Sachs. They are the “Fathers of the Legal Process School.” They synthesized the above ideas, especially (1) through (3), and synthesized it into a course meant to capture the way law works. The resulting legal process course was extremely influential from the 1950’s to present. 5 Supreme Court justices took that course.

Institutional Settlement: The ability of institutions to settle disputes. The decisions that are duly arrived at as a result of duly established procedures for making decisions should be binding upon the whole of society until they are duly and legitimately changed. Legal process school saw this as the most important purpose of law. If you don’t have a means to settle people’s disputes institutionally through consistent procedures, people will take it upon themselves to settle their disputes, possibly resulting in violence or anarchy.

Reasoned Elaboration: Meant to counteract the unfettered discretion of a judge. The judge in deciding a case should elaborate the principle extracted from the precedent case in a way that’s consistent with other established applications of it, and do so in a way that best serves the policies it expresses. Look at the precedent, figure out the policy it was meant to serve, and then do an application and explanation that furthers that policy.

3 Characteristics of the Legal Process School

(1) Purposiveness of Law. Law shouldn’t be arbitrary.

(2) Institutional Competence and Coordination between Branches. No one branch should be so power hungry that it takes on legal tasks that aren’t logically lodged there. If it turns out that another branch is better-suited to handle a legal problem, the other branches should be willing to relinquish its power in favor of that other branch.

(3) Legitimizing Role of Procedure. Procedure was very important to Hart & Sachs. They were emerging from an era of legal realism, which taught that law was indeterminate with no logical or rational way to get from a rule to a particular outcome. The one constant, even if you couldn’t predict substantive outcomes, you could at least expect disputes to be handled in a procedurally constant way. “The substance of decision cannot be planned in advance…, but the procedure of the decision commonly can be.”

a. Procedure is conducive to well-informed and wise decisions. You’re more likely to get to the right decision if you’re using good procedure

b. Procedure is the means by which interconnected institutions work together smoothly.

c. Procedure provides mechanisms for controlling discretion and for self-correction. Procedure constrains judges, to some extent, providing a “check” on the unfettered discretion decisionmakers would otherwise have.

d. Procedure is critical to law stability and legitimacy.

Karl Llewellyn, “The Bramble Bush: Precedent is when an official does over again in similar circumstances substantially what has been done by him or his predecessor before. It is akin to the notion of “habit” in an individual.

Why do we have habits? More efficient—no need to reinvent the wheel. Comfort in consistency. Inertia, lack of energy to figure out something different. Convenient.

Llewellyn believes legal precedent is fed by inertia and convenience of not having to reinvent the wheel and re-figure things out. He says there’s a strong institutional resistance to admit that a prior decision was wrong. In other words, a court in a later case, instead of saying “We reject this precedent because it was wrong”, would rather dist

en them.


We have a strong societal norm of equal treatment, so we want someone who commits Crime X to get the same sentence no matter which judge hears the case. This produced the movement toward sentencing guidelines.

Plays on the theory of institutional competence too—the legislature is essentially “co-opting” the discretion of the judge when it passes sentencing guidelines. Is the legislature the most competent institution to set penalties, or is it the judge in his discretion?

However, the Supreme Court decided that sentencing guidelines cannot be made mandatory on judges, indicating that perhaps the pendulum is swinging back toward judge discretion, and away from allowing the legislature to sort of co-opt that discretion.

Hart & Sachs on Discretion: Discretion allows the intelligence & goodwill of society to be applied to the law. It played an important role in taking the law and molding it to individual circumstances.

The Queen v. Dudley & Stephens: Three shipwrecked men kill a young, dying cabin boy to feed on until they are rescued. Murder?

Δ’s argument was that the act was necessary, and that excuses the harm of the act.

Judge more worried about the precedent a decision would set for future cases, than about allowing these past actions to be given an exception to the general rule.

ISSUE FOCUS: The Death Penalty


Roscoe Pound

Law is impacted by society and sociological pressures, and at the same time, law influences society. It’s the sort of idea that was underneath The New Deal.

The source of conflict in society is scarcity, when two people want to enjoy the same piece of property in different ways. The desires of each of us continually conflict or overlap with each of our neighbors.

Justice is not the ideal relationship among men; it is a regime designed to adjust the relationships between people with the goal of making the scarce goods of existence go around as far as possible with the least friction and waste.

Tools legal system should use to resolve the conflicts:

(1) Precedent.

(2) Jural postulates.

a. Torts. No intentional aggressions against men

b. Property. may use for beneficial purposes what they own

c. Contracts & Restitution. Others will act in good faith and carry out their responsibilities.

d. Torts/Negligence. Others will act with due care.

e. Others will keep in check those pieces of property “likely to get out of hand.”

(3) Policy.

Criticism of jural postulates: Either they’re too general to provide much guidance, or if you interpret them too narrowly people won’t abide by them.

The point of the justice system is a means rather than an end. The point is to make a system that works.

The Case of the Spoiled Chiles, by Laura Nader:

Was there a clear winner or loser? Probably not.

What’s the scarcity here? Access to the road. Vendor wants better access to customers, truck driver wants more space on which to drive his truck.