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107 Harv. L. Rev. 2031 (1993-1994)
Making of the Legal Process, The

handle is hein.journals/hlr107 and id is 2051 raw text is: COMMENTARY THE MAKING OF THE LEGAL PROCESS William N. Eskridge, Jr.* Philip P. Frickey** In one of the most unusual decisions in the history of legal pub- lishing, Foundation Press is printing the 1958 tentative edition of Henry M. Hart, Jr. and Albert M. Sacks's teaching materials on The Legal Process: Basic Problems in the Making and Application of Law.1 Although The Legal Process remains unfinished to this day, it provided the agenda, much of the analytic structure, and even the name of the legal process school of the 1950s and the i960s.2 One need not embrace the proposition that The Legal Process is the most influential book not produced in movable type since Gutenberg'3 to agree that these are unusually important teaching materials whose influence ex- tends well beyond the students who studied them in a law school course. Despite their fame, The Legal Process materials presented us (the current editors) with several mysteries: How original were they? Why were the materials never published in the authors' lifetimes? How did these unpublished materials gain the stature they enjoy today? This Commentary provides both background and our own informed speculation about the answers to these questions. We maintain that The Legal Process was a splendid synthesis of public law themes that had become prominent before World War H. Although the world view and assumptions of the materials were sharply questioned by the next generation, The Legal Process and its philosophy made a come- * Professor of Law, Georgetown University. ** Faegre & Benson Professor of Law, University of Minnesota. We thank Clark Byse, Abram Chayes, Norman Dorsen, Erwin Griswold, Willard Hurst, Larry Kramer, Richard Posner, and David Shapiro for comments on an earlier version of this Commentary, which is distilled from the Introduction we are writing to the Foundation Press edition of The Legal Process. Many others have contributed to that Introduction from which this Commentary draws. 1 HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (tent. ed. 1958). 2 See ROBERT STEVENS, LAW SCHOOL: LEGAL EDUCATION IN AMERICA FROM THE I8SOS TO THE I980S, at 270-71 (1983); MORTON HoRWITz, THE TRANSFORMATION OF AMERICAN LAW 1870-I960, at 253-55 (1992); Clark Byse, Fifty Years of Legal Education, 71 IowA L. REV. 1063, 1076-77 (iq86); Duncan Kennedy, Legal Formality, 2 J. LEGAL STUD. 351, 395-98 (1973); Elizabeth Mensch, The History of Mainstream Legal Thought, in THE POLITICS OF LAW 18, 29-30 (David Kairys ed., 1982); Jan Vetter, Postwar Legal Scholarship on Judicial Decision Making, 33 J. LEGAL EDUC. 412, 415-17 (1983). 3 J.D. Hyman, Constitutional Jurisprudence and the Teaching of Constitutional Law, 28 STAN. L. REV. 1271, 1286 n.70 (1976). 2031

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