Law new refers to the emergence of a new mode of legal scholarship characterized by a shift in subject matter and audience. It also suggests a shift in paradigms – from the process justification of judicial decisions to a more holistic approach. But its most significant feature is conceptual – a reinterpretation of the notion of law itself. The word “new” is dangerously ambiguous, but when it is applied to law, it usually signifies a departure from the past and a promise of future change.
Until recently, the study of law resembled a pure trade school – somewhat like the truck driving schools that advertise on late night television. Its transformation into a true academic discipline required the establishment of law schools as separate colleges of education and law, rather than as training programs for a particular profession. This shift also necessitated a change in the relationship of law to other disciplines. As a result, the modern legal academy has become a complex of prescriptive disciplines, each with its own internal controversies and traditions.
The new legal scholarship focuses on issues of importance to legislators and administrators, who do not view their actions as a process of adjudicating individual cases but rather as a means for fulfilling a policy goal. To understand their purposes and the ways they achieve them, scholars must think differently about the nature of law itself. They must also develop a methodology that shifts the focus from process justification to cause and effect justification.
In its earliest stages, the movement toward law new involved primarily an expansion of existing scholarship to encompass topics of importance to legislative and administrative decisionmakers. Nevertheless, it has also generated some controversy and debate about its methodological implications. Some critics have feared that the New Public Law movement will transform legal scholarship into social science or public policy, while others have worried that it will neglect traditional concerns about constitutional law.
These criticisms reflect a fundamental misunderstanding of the nature of the new scholarship. The movement aims not to turn law into something other than it is, but rather to transform its analytic capabilities. In this sense, the New Public Law is not a break with tradition but an extension of it – a transformation of legal scholarship into a form that is capable of meeting the challenges of our changing law.
The New Public Law is not an attempt to replace existing law, but rather an effort to make that law more useful to legislators and administrators. This transformation will occur only if legal scholars are willing to shift their perspective from the case*situated view of law to a more general and global one. Only then will the new scholarship have a real impact on the actual operation of our modern legal system. Until then, it will be simply a form of legal escapism. *