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Monday, October 09, 2006

Conflict in the Legal Academy, circa 1969-70, with Implications for Today

The first PrawfsBlawg post on Law as a Means to an End identified the key modern dynamic in the spread of an instrumental view of law within the legal culture, concomitant with a loss of faith in the social good.  These two components became firmly entrenched in the legal academy in the 1960s and 1970s, as I will indicate in the third post (coming this Wednesday).  But first, it is necessary to recognize the searing social and political events of this pivotal period, and their immediate effect on attitudes toward law.  Take a look at these extraordinary passages, excerpted from the "With the Editors" statements of the 1969-70 Harvard Law Review:

On the night of April 15, a conflagration raged between the police and demonstrators in Harvard Square.  Its destructive effects, however, spread far beyond the original participants and area.  Stationing themselves just a block from Gannett House [the home of the law review], scores of helmeted police cordoned off the Square from the north.  Many students stood in small groups outside the police barricade, silently watching and wondering about the events occurring a few blocks away.  Suddenly, and without any observable provocation from the bystanders, the police advanced, soon running and swinging their riot clubs wildly.  Students fled from the charging policemen and sought refuge in Gannett House or other nearby buildings.  Others were less fortunate.  An officer of the Review, trying to avoid the onrushing police, had his key in the lock of the Gannett House door when he was clubbed from behind by one of the two officers running by.  Neither stopped; the blow on the head was merely a gratuitous gesture by the guardians of the law.

...Police here, as in so many other cities, added recruits to the radical cause by their misguided attempts to bludgeon that very ideology.

The editorial statement from a another issue of the same volume remarked upon the "invasion of Cambodia and the official murders at Kent State, Jackson State, and elsewhere..."  In yet another issue, the editors linked ongoing events to their increasingly skeptical views of law:

At a time when so many venerable traditions are being skeptically scrutinized, if not harshly attacked, it is hardly surprising that legal reasoning is also attracting increasing criticism.  Growing numbers of students are questioning whether lawyer-like logic and analysis are indeed proper tools for contemporary problem solving.  Such students believe that the Law School and the method of analysis it teaches deliberately obscure rather than clarify relevant issues.  In assessing legal logic, at least one disgruntled student has termed it a "cerebral trickbag," which is presumably manipulated by the malevolent masters of the Establishment.

It is true that what passes for logic in some judicial opinions (and in many classrooms) is a little more than finely spun sophistry.  It is also important to note that pure logic does not offer a solution to all problems.  In reaching a great many solutions, a value judgment or aesthetic choice becomes inevitable, no matter how much the decision-maker may isolate and clarify the relevant issues by means of  careful analysis.  Indeed, in some cases the 'logical' solution may even be inappropriate because certain emotional or other supposedly illogical factors are proper considerations.

The preceding statements must be read as they were meant at the time--as an explicit repudiation of the legal process school, which was the dominant legal theory of that generation.  Harvard Law School was the home of the legal process school, developed out of the work of Felix Frankfurter, Lon Fuller, and, especially, The Legal Process course materials compiled by Henry Hart and Albert Sacks.

Legal process thinkers asserted that the role of the courts is, as Hart put it, "to be a voice of reason;" judging involves the "reasoned elaboration" of enduring legal principles.  The judicial development of these principles was described by Fuller as "the law 'working itself pure."  Courts were designated by the legal process school as collaborators with legislators in the development and rationalization of the law.  When interpreting legislation, judges were instructed to presume that "the legislature was made up of reasonable persons pursuing reasonable purposes reasonably."

This was the mainstream view of law in the legal academy throughout the 1950s and in to the 1960s.   The legal process account of judging was plausible in the 1950s because it implicitly relied upon the assumed happy consensus of this booming time--what Daniel Bell labeled "the apathy of the fat fifties"--a consensus that ignored the plight of black Americans, and was soon to be shattered by civil rights protests and anti-war protests.

The student editors of the law review were especially troubled by the fact that the legal process school, with its emphasis on reason and "neutral principles," implicitly and explicitly criticized the Warren Court as unprincipled and result-oriented.  The editors (in another Editorial statement) protested that the "compelling logic of the Frankfurter-Hart school has often appeard to impose a deadening hand..."  The Editors left no doubt about their sympathies, writing on the first page of the volume (on the occasion of his retirement): "To Chief Justice Warren, who with courage and compassion led a reform of the law while the other branches of government delayed, the editors respectfully dedicate this issue."

At the very outset of the 1970s, law students across the nation--and keep in mind that Harvard was not the most radical campus at the time--were skeptical of law and legal reasoning.   Many graduates from top schools--including 7 editors from the volume that produced the above quotes--became law professors.   Seminal works in law and economics and in Critical Legal Studies, both characterized by a deep skepticism of law and legal reasoning, were produced early in the decade, setting the stage for later developments in legal theory. 

Posted by Brian Tamanaha on October 9, 2006 at 03:40 PM in Tamanaha | Permalink


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Posted by: Kikilo | Dec 2, 2020 11:51:41 AM

Thanks, Brian.

FWIW, as a non-expert, this isn't exactly the impression I get when reading the original sources.

First, it's true that judges were seen as having control over the common law in the 19th century, but the role of judges was smaller on the whole than it is today; control of the common law meant a lot less than we imagine it did when viewing courts through a modern lens. Judges had a bigger piece of a smaller pie; it wasn't until the early 20th century that judges started to take a much bigger role, which triggered a natural backlash from those looking to restore the more traditional relationship of a narrower role for the courts. That's my best sense, at least.

I also just disagree with your view that the legal process school was presented as descriptively grounded. I've never come across that in their writings, which always seem to be normative. I will agree that those who criticize the Legal Process school often present it as if it were descriptive, but I have tended to find that the original sources present a very different picture.

Posted by: Orin Kerr | Oct 10, 2006 11:42:33 AM


Thank you for your response to my comments. Once again your basic point is correct, but a bit more needs to be said. While the notion of the separation of powers has indeed been an aspect of our system since the founding, a major shift has taken place with respect to the accepted boundary of the judicial role within this separation. Throughout the nineteenth century, the common law--and natural principles contained therein--was considered to be the center of gravity of law. The common law and natural principles were cited in ordinary cases as well as in constitutional interpretation. Judges, of course, controlled the development of the common law. [The first few Chapters of Law as a Means to an End traces out the shift away from these ideas.]

It was not until the 1930s and 1940s that legislation and administrative regulations were--belatedly--given their due as sources of law. One of the innovations of the legal process school was to recognize this modern fact and give it a central place their theory. At the time they did this, the already dominant and ever-increasing role of legislation and adiministrative regulations were clear to all legal observers. That is why I limited my statement of prevailing understandings to the period "since the 1940s," although its roots extend earlier. [Coincidentally, as you probably know, just this past week legislation was included in the 1L curriculum at HLS.]

As for your second point, although legal process thought definitely had a normative thrust about the proper role of judges, it was also presented as based upon how our legal institutions (including courts) actually function, and was in that sense descriptively grounded. They were well aware, however, that courts did not always remain within the role set for them by legal process theory--hence the tension with the Warren Court.


Posted by: Brian Tamanaha | Oct 10, 2006 9:17:59 AM


Thanks for the interesting response. I think there is an important distinction here: (1) The view of law offered by the Legal Process materials assembled by Hart & Sacks, and (2) the basic notion of the importance of the separation of powers and a limited role for the courts in the making of social policy. I would argue that the latter is not just an "articulation of the fundamental understanding of our legal-political system since the 1940s," but an articulation of the fundamental understanding of our legal-political system since the founding.

Also, I think there is an important normative/descriptive point here. As I understand it, the Legal Process thinkers were legal realists descriptively; their views were normative claims about the proper role of judges, not descriptive claims about what actually happens. Or so I have generally thought.

Posted by: Orin Kerr | Oct 9, 2006 7:08:17 PM


In my haste, I left out a crucial point. Although everyone at the time was affected by the events described in the first indented quote, not everyone responded in the skeptical way indicated in the second indented quote. Many conservatives, in particular, were opposed to the Warren Court for the reasons set out by legal process thinkers (a number of whom were liberals), and they did not embrace skepticism about law. These views survived into the present, which is another partial explanation for your observation.


Posted by: Brian Tamanaha | Oct 9, 2006 6:44:38 PM


You are correct that legal process assumptions are still popular. A strong argument can be made, as Malcolm Feeley and Ed Rubin have observed, that legal process thought "has dominated legal scholarship for the last fifty years." Legal process ideas, as you note, are also influential within the judiciary. The legal process materials were taught at law schools around the country well in to the 1980s. Its core ideas are still popular in part because contemporary academics and judges were either taught legal process materials directly or were taught by professors who were influenced by legal process materials.

Legal process ideas--though not directly associated with the school as such--remain popular for the separate reason that they are an articulation of the fundamental understanding of our legal-political system since the 1940s, and in particular of the role of judges within this system. The legal process school, in other words, captured and formalized views of our system that were already circulating, and that survived the passing of the school.

Furthermore, the general legal process approach--its focus on process factors--matches the contemporary flight from substantive questions, which have become so problematic in the modern era. In this sense, legal process thought, like notions of procedural justice, remains an attractive default position in a society and legal culture riven by disagreements about the content of moral or legal principles.

Finally, I should add, while you are probably correct that all nine current justices would claim to agree with the basic approach of Frankfurter and Hart, whether they are acting consistent with this claim is not free from doubt. Frankfurter was a strong proponent of deference to legislative decisions. By various accounts, Thomas, Kennedy, and Scalia have voted to invalidate federal statutes in about 60% of the cases in which the statutes were challenged, which raises a very serious question. Moreover, a number of the court's recent opinions, including, for example, Casey and Lawrence, would not be easy to square with legal process thought.

For a variety of reasons, law today is not understood in the same way law was understood in the 1950s. Few judges today would assert that they are engaged in "working the law pure." Moreover, in an age when policy analysis is a standard aspect of judicial decisions, it cannot be said that the core legal process notion of "institutional settlement"--which channels contested policy questions to legislatures--is being honored.

Thus, while your basic point is correct, the situation is complicated. One of the most fascinating aspects of the legal process story--aside the fact that it contains no mention of the Brown v. Bd. Ed., the most controversial case of the time--is that the material was copied and taught in law schools around the country for decades, but not published until the mid-1990s, when it was no longer widely used. This odd history is a telling indication of the peculiar position of the legal process school in our legal tradition.


Posted by: Brian Tamanaha | Oct 9, 2006 6:11:45 PM


Aren't the assumptions of the Legal Process school popular today? I would guess that all nine of the current Justices would agree with the basic approach of Frankfurter and Hart, at least as presented at a high level of generality.

Posted by: Orin Kerr | Oct 9, 2006 4:42:59 PM

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