In the law, new means fresh, or having recently appeared. It also may refer to an innovation in a legal practice or technique, or to a change in a particular legal policy. But “law new” can mean something even more fundamental: a shift in the way we think about the practice of law and its purpose.
It is time to move from treating law as an intellectual exercise, an enterprise in which scholars construct doctrinal arguments and translate public policy into legal doctrine, to a new understanding of what law is for and how it works. This is the challenge of the “New Public Law,” as its proponents have named it.
This challenge is not easy. It will require legal academics to move beyond their traditional training and institutional structure, which is built on the notion that the field of law is distinct from other disciplines. It will require them to develop a new paradigm for their work, one that allows them to answer such questions as: How do legal rules serve specific purposes? When do they work best and when do they fail? How can legal technology be used to improve the process of delivering legal services? How does legal regulation influence broader social and political changes?
The challenges of the New Public Law are matched by the challenges of prescriptive scholarship. Legislators and administrators, after all, do not always heed the recommendations of legal scholars, and their decisions often have their own motivations. Nevertheless, a prescriptive approach to law must be able to articulate principles that are relevant and useful to these decisionmakers, and must help them develop the capacity to adapt law to their own needs and circumstances.
One such principle would be to understand that laws are not always governed by a set of fixed, enduring rules, but rather by the continuities of social and political change. The law thus should be flexible enough to accommodate these continuities, and to provide a point of departure for legal scholars in their search for new insights and new solutions.
The New Public Law is an effort to understand and shape these continuities, and to create tools that allow the law to evolve in response to them. Such tools include a new conception of law, an approach to legal scholarship that emphasizes its public service role, and a more holistic approach to legal practice. In this way, the New Public Law has the potential to reinvigorate the study of law — to transform it from an intellectual exercise into a vital tool for serving the interests of society at large.