Rejecting the Legal Process Theory Joker: Bill Nelson's Scholarship on Judge Edward Weinfeld and Justice Byron White

My contribution to this tribute places Bill Nelson’s scholarship about Judge Edward Weinfeld and Justice Byron White within several contexts. It is a personal history of Nelson the law student, law clerk, and young scholar; an intellectual history of legal theory since the 1960s; an examination of the influence of legal theory on Nelson’s scholarship based on his writings about Weinfeld and White; and an example of how legal historians contend with the subject of judicial reputation. Nelson was one of many former Warren Court and Burger Court clerks who joined the professoriate and rejected the legal process theory that they had learned as law students. Instead of process theory, Nelson and this upstart generation of scholars gravitated to one of five competing theories: (1) Rights protectors; (2) Post-realism; (3) Law and economics; (4) Originalism; and (5) Judicial restraint holdouts.

Nelson’s scholarship about Weinfeld and White represents a case study about a scholar struggling to fit two judges whom he clerked for and greatly admired into one of these five schools of thought. Nelson tries hard to turn them into rights protectors, to draw similarities between their jurisprudence and Justice Brennan’s jurisprudence that Nelson so obviously admires. Nelson also reframes Weinfeld’s and White’s judicial restraint so that it looks nothing like the pretentious process theory that Nelson had rejected at N.Y.U. Law School and at Harvard.