In response to the legal realism critique that judges invariably make law, Hart and Wechsler focused the attention of the emerging legal process school on the question of "what kinds of law could [judges] legitimately make, and when?" Hart and Wechsler's initial response was that, if there may be widespread disagreement on what the substantive law is, or ought to be, in a given field, there may at least be agreement as to where institutionally those decisions should be made, and under what conditions or set of rules (such as jurisdiction, procedure, etc.). The role of the courts, particularly with respect to the Constitution, "is essentially a common law function, arising from the court's common law process respecting litigants." Thus, "[b]y paying strict attention to second-order rules allocating power between federal courts and other institutions, the legal process theorists sought to specify with precision the boundaries and purposes of federal judicial power. Once these boundaries were specified, federal judicial decisionmaking could be both legitimated and restrained."
