Is Law New?

Among the most pervasive and vexatious effects of legal scho larity, at least as viewed from the perspective of the public, is its relentless demand for “law new.” This term may mean “new” in the sense of the latest version of a computer software product or a particular type of laundry detergent, but in legal scholarship it is usually employed to imply that a current policy problem requires a fresh approach, a fresh interpretation of existing law, or a new method of analysis.

Legal scholars are often unable to satisfy this demand, despite the persistent insistence that “law needs to be made new.” One explanation is that a major shift in the way law works would be necessary before there could be any significant change. Law as a system of formally enacted laws is an extremely complex, often irrational and illogical mechanism for addressing social and political problems, with a vast array of unintended consequences. Insisting on the law to be made new would require a major rethinking of this complexity, and the way that the law is understood by legislative and administrative decisionmakers.

A more convincing explanation is that the legal academy’s conception of the nature of law makes it impossible to make it new in any meaningful sense. For most of the last century, legal scholarship has tended to treat law as an embodiment of general principles that can be judged by their coherence or failure to reflect those principles. But legislative and administrative decisionmakers do not see the law in this way. They are concerned with the efficacy of exis ting laws, and they judge their efforts by the extent to which they achieve their purposes.

These decisionmakers may intercede in judicial disputes over statutes and regulations, but they do so less often than casebooks suggest and almost always in a supervisory capacity. They may declare that an agency has violated a specific statutory provision or constitutional right, but they never invoke transcendental principles. Instead, they use the law as an instrument for achieving particular policy goals.

In this context, “law” should be understood to include all of the regulatory tools used to govern public life: statutes, executive orders, rules, re gulation and enforcement procedures, and other formal instruments of state authority. To be lawful, these instrumentalities must also be transparent to the public. Consequently, the defining task of legal scholarship is to identify these instrumentalities and develop a theory for translating policy into them. This task is the focus of what this article describes as New Public Law scholarship. To accomplish it, we must move beyond the simple dichotomy of process justification and cause-and-effect justification. New Public Law scholarship seeks not to replace these analytical modes, but to augment them. This work attempts to do so by examining the way that legislative and administrative decisionmakers frame their policy goals and by discussing the techniques they use to translate these policies into exis ting laws and regulations.