To see what kinds of issues are brought forward in legal process reasoning, we can consider this straightforward question: when should a contract be enforced by a decree of specific performance? One possible way to reason about this question is to emphasize what we suppose would be the understandings of the parties. When would they have agreed to specific performance, and when would they have limited the remedy to damages? Another possible way is to emphasize the desire to compensate the innocent party. When would the routine damage remedy, based on market values, suffice, and when would it be likely that subjective, non-market values were involved? (Law and economics scholars often ask questions like these. ) If we approach the matter from a legal process perspective, however, we emphasize the institutional differences between the damage and specific performance remedies. Not only the formal differences - damages historically were awarded by law courts sitting with juries, specific performance by equity chancellors sitting alone - but more importantly the functional ones. Since decrees of specific performance require specified acts, they are often more coercive than awards of damages and can require considerably more judicial involvement to ensure compliance with the decree. There is, indeed, considerable evidence that functional reasons like these form the basis for the bulk of cases - such as many personal services contracts - in which specific performance is refused. And even in situations in which specific performance is routinely granted, a similar analysis may be lurking. Perhaps the archetype of the specifically enforceable contract is the land sales contract, usually rationalized on the basis that every plot of land has unique attributes, so damages will never be compensatory. But is it irrelevant that the decree requires for its fulfillment only the simple act of signing a deed, or that, in many jurisdictions, even that act need not be coerced because the judicial decree can itself be registered as a land transfer? In this situation it is, indeed, easier and simpler to award the equitable decree that it is to measure damages.

This example is rather straightforward, because we are only analyzing alternative possible responses from a single legal institution, the courts. The legal process approach made its name, however, by its willingness to consider, and its apparent ability to answer, complex legal questions in which more than one, perhaps several, legal institutions are involved. 

Questions comparing the competencies of various legal institutions arise starting from the very first day of law school. For example, in considering the proper scope of a court's power to overrule one of its precedents, one has to consider the pros and cons of the alternative of leaving revision to the legislature. But - as the legal process school taught us - there is more to the institutional structure than this simple dichotomy of courts and legislatures. For example, the ability of people to order their own affairs through use of the rules of contract and property is also -- because it depends on legal rules and legal enforcement -- a legal institution. When should private ordering prevail, when the courts, when the legislature - these questions concerning the comparison of various institutional possibilities are endemic both in the law and in the first-year law school curriculum.

What is probably the archetype of legal process analysis, however, concerns the relative place of an institution little met in the first year of law school, although familiar enough in later years and, one might add, in practice: the administrative agency. It is no historical accident that the legal process school of thought developed in and after the New Deal. Legal process analysis is responsive to all of the outstanding legal -- and political -- developments of the 1930's: the explosive growth of law regulating the economy, especially on the federal level; the implementation of that law through a myriad of new agencies; and the demise of the Supreme Court's effort (under the guise of "substantive due process") to confine regulation within the thought processes of the common law tradition. These developments created a general sense of need for a new analysis of the role of the law, and in particular they signaled the demise of the existing approaches to defining the various institutions of government. Earlier, less intrusive forms of regulation had been analyzed in terms of the formal characteristics of the three branches of government: the legislature made the fundamental policy choices, the executive filled in the details as part of enforcement of the law, and the judiciary kept the executive within its clearly delegated authority. This traditional analysis, applied to the newly created regulatory agencies, was seen to be a masquerade. The new agencies seemed to combine the attributes of all three constitutionally-named branches and to have vast power. While they seemed to be necessary, they could not be justified in terms of older theories.

The most famous effort to fill this justificatory void - and arguably the first major work of modern legal process analysis - was The Administrative Process, published in 1938 by James Landis, the Dean of the Harvard Law School who had been a commissioner on the Federal Trade Commission and Chairman of the Securities Exchange Commission. Landis argued that "[t]he administrative process is, in essence, our generation's answer to the inadequacy of the judicial and legislative processes."^[1] Much of the argument focused on specific features of the traditional processes that ill-suited them for economic regulation. For example, judges (but not legislators) were hampered by the fact that they only got involved with that comparatively-speaking small number of instances brought to their jurisdiction by private litigants. Administrative agencies, by contrast, could investigate and initiate the proceedings they wanted. But Landis had a broader theme as well: the far-reaching, general jurisdiction not only of the judges, but of all of the traditional branches of government, meant that they became "jacks-of-all-trades and masters of none".^[2] The personnel of the administrative agencies, by contrast, were experts. And the problems of modern government, Landis argued, were primarily problems that would yield to technical expertise; the task of regulation was managerial rather than a matter of rights and wrongs. As it turned out, most of the leaders of the regulatory bodies were not technical experts, but lawyers and political figures -- though agencies hired economists, engineers, and so forth. But the point was not so much their training as the structure in which they worked: the expertise came from the institutional arrangement itself. Just because the agency had continuing responsibility for regulating a particular industry - because, for example, the S.E.C. dealt with securities and securities exchanges but not with labor relations, or communications law, or whatever else - the agency developed knowledge about that industry, its trade practices, economics, and so forth, that no other branch of government could match. Consequently, when the regulatory problem to be solved depended, as it so often did, on a pragmatic judgment rather than an abstract principle, the agency had a comparative advantage, an institutional competence, that made it the instrument of choice.

In subsequent years, Landis's understanding of the administrative agency in terms of its particular institutional process was translated into many legal doctrines, especially regarding the relationship between administrative agencies and courts. The starting point was the traditional ideal that it was the courts that were charged with the responsibility of seeing that other agencies of government remained within the statutory and constitutional limits on their authority. This function of reviewing the work of administrative agencies was in most cases lodged by statute in the federal courts of appeals. This suggested as an initial analogy the relationship between appellate courts and trial courts. But the analogy had to be reconsidered because it was not a trial court, but rather an "expert" administrative agency, that the appellate court was reviewing.

In strictly judicial proceedings, questions of fact are for the trial court, to be set aside only if the trial court's finding was arbitrary and quite outside of the evidence in the case. Questions of law, on the other hand, are reviewable de novo by the appellate court, which can freely substitute its judgment for that of the trial judge. On the factual side, it was established after some skirmishing that the relationship of administrative agency and reviewing court would be similar to that of trial court and appellate court. Finding facts was, after all, a routine task for the agency and, insofar as review was lodged in an appellate court, it had no mechanism for taking evidence at all.

Who should decide what the law was, and how it should be applied to the basic facts, presented much more difficult questions. Congress, in establishing agencies, often spoke in the most general terms. The Federal Communications Commission, for example, was given the task of awarding frequencies to radio stations according to "the public convenience, interest, or necessity." Now, it was a usual task of courts to bring general law down to specifics; that was part of their expertise. At the same time, insofar as the solution to a practical social problem was at stake, the expertise of the agency, which lived with the problem day-in-and-day-out, might have a greater claim. What developed was a complex multi-factored test for determining which institution, agency or court, was more competent to answer the particular question presented. Among the factors to be considered was whether the issue presented had a large technical or scientific content, or not; whether it could be resolved from research in traditional legal materials, or not; whether the issue raised questions of the intersection of this administrative program with other programs, or not; whether the issue went to the scope of the agency's jurisdiction, or not; whether the agency had followed a consistent course of interpretation, or not; whether the agency had been involved in drafting the underlying legislation, or not; and so forth. The important point for present purposes is not the details of the test, but rather that the relative roles of the courts and the agencies were being understood in rather functional and contextual terms. So viewed, agencies often were given more deference for their decisions than trial judges were. Or, to put the same matter in a different way, agencies often got to settle - settle in the sense that appellate judges would defer to their decisions - issues which, in the trial judge-appellate judge context would be denominated questions of law, as to which the appellate tribunal would feel free to make its own judgment. This was a substantial departure from traditional, abstract, separation-of-powers conceptions, in which (in the words of John Marshall) "It is emphatically the province and duty of the judicial department to say what the law is."^[3]

This idea - that various aspects of complex legal problems should each be settled by the institution with the greatest practical competence to decide it - was a cornerstone of the legal process approach. It was carried forward in the most famous expression of legal process reasoning - from which, indeed, the school of thought takes its name -a set of law school teaching materials: The Legal Process, by Henry Hart and Albert Sacks. This has been called "the most influential book not produced in moveable type since Gutenberg"^[4] because although the materials, first issued in 1958, were widely circulated and used in many law schools, they were not published in hardcover until 1994, after the authors' deaths. Until then, they circulated in typescript form, reproduced by a copy machine. 

Exemplary of the work was its well-known "Problem No. 1. The Significance of an Institutional System: The Case of the Spoiled Cantaloupes."^[5] The problem presented a true case that ultimately reached its resolution in L. Gillarde Co. v. Joseph Martinelli & Co., Inc., 169 F.2d 60 (1948), amending 168 F.2d 276, cert. denied, 335 U.S. 885. The fact pattern was straightforward. A wholesaler agreed to buy from a distributor a carload of cantaloupes already en route to market by train. Although they had been officially graded "U.S. No.1" when loaded, they arrived almost completely spoiled. The train had been delayed; but the cause of the spoilage was a rot which, although it had infested the melons while they were in the field, was still invisible when they were inspected and loaded on the train. The buyer refused to accept the melons, and the seller demanded reparations. The buyer in turn claimed its damages. What should the outcome be? What do you think is a just result under the circumstances? 

As Hart & Sacks presented it--in 60 pages of materials, questions and analysis-- the solution to this seemingly straightforward commercial problem implicated nearly every existing legal institution: the parties themselves in the terms they put in their contract; state legislatures, which enacted the Uniform Sales Act (predecessor of Article II of the Uniform Commercial Code); state courts that rendered decisions construing that Act; the federal Congress, which, in 1930, passed the Perishable Agricultural Commodities Act; a federal administrative agency, the Department of Agriculture, which issued regulations defining various trade terms and handed down administrative decisions in prior reparations cases and in this very case; and ultimately the federal trial and appellate courts that had to review the agency's decision. 

It might be thought that this proliferation of legal materials would make solution of the problem impossible, except by means of an arbitrary act of will. After all, each of these sources is itself subject to ambiguity, and when ambiguity is piled on top of ambiguity, surely chaos must result. But the point of the problem is that, in fact, exactly the opposite happens. Some sources can provide that other sources take precedence. For example, the Sales Act allows parties to vary its rules through contract. More importantly, some sources can serve to resolve the ambiguity of other sources. The contested terms of the contract, ambiguous standing alone, become clear in light of the administrative regulations that serve to define the meaning of terms used in simple contracts of this sort, unless otherwise specified by the parties. Finally, where an unsettled issue really is presented, the law can choose who will choose. In the cantaloupes case, the one open issue on which the case finally turned was whether the buyer, by wrongfully rejecting the spoiled cantaloupes, had forfeited its remedy for breach of warranty. On rehearing, the Court of Appeals finally concluded that it should dcfer to the expertise of the Department of Agriculture, which had decided against the buyer on the ground that it was important to maintain a strong sanction against buyers' wrongful rejection of shipments, because it often led to fruit which had been shipped long distances becoming commercially worthless.

(Although this problem thus ends on a note of deference to the administrative agency, Hart and Sacks were by no means uncritical proponents of administrative expertise. A considerable portion of the problem is devoted to displaying the flaws in the agency's handling of the case, primarily its lack of transparency--its failure to reveal in its regulations or prior decisions how alternative possible rules would impact on the fruit and vegetable trade. The authors did not endorse administrative fiat, but insisted that the agency ought to provide a reasoned analysis linking its decision to its expert knowledge of the regulated industry. It was only after the Department of Agriculture explicated its decision in an amicus brief submitted to  the Court of Appeals on rehearing that the court saw the importance of deferring to the agency.)

Hart and Sacks put the point of "The Case of the Spoiled Cataloupes" in a follow-up question to the case:

The account of the episode which has been given has emphasized the vagueness and uncertainty, for many purposes, of many of the legal arrangements involved. But is it not defensible to conclude that this complex of "loose artificialities" nevertheless articulates tightly when brought to bear upon the concrete facts of an actual situation, leaving only a single question which is fairly open to a reasonable difference of opinion - namely, the question on which the court of appeals changed its mind on rehearing [and on which it ultimately decided to defer to the agency]? If you think this is true, consider its implications with respect to the nature of the legal process.^[6]

This view, that various legal institutions can help each other give content to the appropriate resolution of a particular problem, that they "articulate tightly," is the answer of the legal process school to the profound conundrum that was the heritage of the realists: if legal judgments, and in particular judicial decisions, are not governed by a structure of neutral and logically connected rules and categories, how can they be anything other that a matter of the politics, or even the whim, of the person with the power to decide? And if that is so, what is left of the certainty and predictability, not to say the rationality and justice, of the legal system? Legal process theorists maintained that if the institutional structure allocated questions for decision to institutions that were well designed to decide them, if each institution did its job properly, and if each one--particularly the courts--did not try to invade the province of the others, then the operation of the legal process would ordinarily produce decisions that were determinate and right. 

The plausibility of this answer depends in part on an assumption that all of these institutions operate in the same realm of discourse, that they can, in a fairly deep way, speak to each other. The necessary lingua franca, according to the legal process school, was provided by the concept of purpose. For writers in the 'forties and 'fifties, purpose was, first of all, a way in which an important antinomy between formalism and realism could be overcome. The formalists claimed that, while legislatures were free to operate on the basis of "willful" (political) choice, the essence of judicial thinking lay in inductive and deductive logic; the realists claimed that such logical operations could not "bind" the judges or determine their decisions, and thus that the core of legal thinking, even for the judges, lay in acts of willful choice. For those who wanted to get beyond this opposition, who wanted to see legal thought as made up of both reason and will, purpose was the answer. "Purpose" (as contrasted with "whim" or "desire") connoted thoughtfulness, planfulness and stability while at the same time (when contrasted with "logic" or "reason") it connoted action and determination . For the legal process theorists, heirs of the New Deal conception of law as "social engineering," the notion of purpose seemed to give a fixity and stability to language that the realists had shown was absent from the formal categories of legal thinking. 

Purpose was also - and here was perhaps its principal advantage - a way in which legislative action as well as judicial thought could be described. For even after judges stopped policing (under the rubric of "substantive due process") the motives behind ordinary legislative action, it was still true that legislators were supposed to be pursuing the public interest when voting for statutes. Insofar as their action was legitimate, it ought to represent not just an act of political will, but an act of will directed toward a public goal. It ought, in other words, to have a purpose. A maxim of Hart and Sacks was that in construing statutes, the court "should assume, unless the contrary unmistakeably appears, that the legislature was made up of reasonable persons pursuing reasonable purposes reasonably."^[7] The same was true of the acts of other organs of government, like administrative agencies. In short, all legally-relevant action could be seen as purposive action. Correspondingly, various legal institutions were not insuperably different in kind, but rather represented alternative ways in which society could pursue its fundamental objectives. They could supplement each other, or substitute for each other, according to their particular advantages or disadvantages in the situation presented. Indeed, it was through the reasoned elaboration of the purposes implicit in the law by all legal institutions within the sphere of their competence, that institutional fidelity to the law was to be achieved. 

In short, the central features of legal process thinking are: first, that the fundamental structures of the law are legal institutions and their processes; second, that allocation of decision-making tasks among institutions can be based on their functional competency; and third, that the concept of purpose provides the medium by which legal problems can move between institutions without losing their identities.