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Law in American History, Volume III1930-2000$
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G. Edward White

Print publication date: 2019

Print ISBN-13: 9780190634940

Published to Oxford Scholarship Online: May 2019

DOI: 10.1093/oso/9780190634940.001.0001

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The American Legal Academy and Jurisprudence II

The American Legal Academy and Jurisprudence II

From Process Theory to “Law And”

(p.346) 6 The American Legal Academy and Jurisprudence II
Law in American History, Volume III

G. Edward White

Oxford University Press

By the close of World War II, Legal Realism had become the dominant jurisprudential perspective in the American legal academy. But developments connected to the use of totalitarian regimes of the left and right put pressure on the apparent claim of realists that “law” was simply the decisions of officials holding power. In response to that concern, and to the “antidemocratic” dimensions of judicial review of major institutions by unelected judges, “process theory,” featuring emphasis on institutional constraints and the obligation of judges to describe cases on legal principles transcending results in cases, became entrenched as a jurisprudential perspective. But then, between the 1970s and the close of the century, process theory lost its resonance. The chapter surveys those developments.

Keywords:   American Legal Realism, process theory, modern legal history, neutral principles, constitutional law, law and economics, law and society

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