Law new is a way of thinking about the law that recasts its significance. Rather than treating law as the embodiment of general principles, it sees it as an instrumentality for achieving specific policy goals. This new view of law makes it necessary to change the way in which legal scholarship addresses it.

The basic problem with most modem legal scholarship is that it focuses on the law itself, rather than on the policy goals that it seeks to promote. This approach is reflected in the fact that most legal scholars treat their audience as judges and attempt to analyze laws from their judicial perspective.

Consequently, their work is of limited value to legislators and administrators, who do not share the academic’s preoccupation with the nature of the law itself. The result is that, while a great deal of legal scholarship consists of attempts to find a better way of doing things, very little of it is directly useful to legislators and administrators.

To be of use to them, scholarship must shift its focus from law as a set of principles to law as an instrument for accomplishing policy goals. It must also shift its analytical focus from process justification to cause and effect justification. This change in analytical perspective, which reflects the shift from analogical to instrumental thinking that characterizes modem legislative and administrative decisionmaking, has profound implications for the content of legal scholarship.

For example, in the past, when a legal scholar examined a case, he or she sought to provide an intellectually coher ent argument as to why it should be affirmed or overturned. This sort of argument is still possible, but it becomes increasingly quaint when addressed to legislators and administrative commis sioners, who do not regard prior legislation as binding precedent. In their day-to-day decisions, they rely upon instrumental reasoning, and their standards of evaluation are whether or not a given strategy has proved effec tive in the past, not whether it embodies any particular general principle.

While it would be difficult to develop a comprehensive list of works that fit this description, it is possible to identify several key features common to this new form of legal scholarship. First, it takes into account the fact that legislators and administrative officials do not merely interpret the law, but make it. This repositioning of the lawmaking process radically changes the nature of legal authority, and thereby transforms the role of legal scholarship.