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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did these unpublished materials gain the stature they enjoy today?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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