New Public Law: Is the Law New?

The word new, used in connection with the law, has become a kind of generic descriptor. It is the label applied to everything from new ways of delivering legal service, to new forms of litigation, to new methods for hiring and training law firm staff. This is an encouraging development. It is a sign that the practice of law is changing, that it is growing and expanding, that lawyers are seeking new sources of revenue and new ways to serve their clients.

The idea of a new law is not merely an economic concept; it is one that requires a serious and thoughtful response from lawyers.

One element of that response is a reorientation of legal scholarship. For too long, scholars have viewed their work as a form of criticism of existing laws. Their purpose was to find flaws in the doctrinal justifications used by judges or to suggest a better way of drafting a statute. This approach has its place, but it is no longer adequate when speaking to legislators and administrators.

Legislators and administrators, in their day-to-day activities, do not see laws as embodying general principles. They view laws as instrumentalities that help them achieve policy goals. Their concern, therefore, is not with the adequacy of current laws, but rather with the effectiveness of various tools for achieving specific policy objectives. It is to this issue that New Public Law scholarship must address itself.

In framing their recommendations, New Public Law scholars are not searching for solutions that are intellectually coherent with a pattern of previous decisions; they are seeking solutions that effec tive ally achieve particular policy objectives. The result is a very different mode of thinking, an approach to law that is distinct from the traditional doctrinal approach and that may be characterized as prescriptive scholarship.

As a result, New Public Law scholars are attempting to develop a theory of law that will identify the instrumentalities that constitute a given policy. In a sense, this is an extension of the analytical framework established by the legal realist movement. The goal is to elaborate on this framework, identifying the recognizable divisions within an area of study and offering a comprehensive treatment of these areas. Such an effort, although requiring considerable intellectual effort, is not a rejection of the case method. It is an attempt to make the law more useful, more ap plied and relevant to today’s legislative and administrative process. It is an attempt to build a theory of law for the modern world. It is an effort that deserves our close attention. The future of the practice of law depends on it.

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