The word “new” is a dangerous one. It is a catchphrase that is used to sell everything from laundry detergents to cars to ideas about the way we organize our society. It has become part of our culture to exaggerate the newness of almost any change, and to denigrate the old as dated, outmoded, and regressive.
The idea that law is new is a particularly dangerous falsehood. It is true that there is much about the practice of law in the United States today that has not existed previously. But what is new is not, as is commonly asserted, a better and more up-to-date version of the law; it is instead a fundamentally different conception of the nature of law itself.
As a result, any change in the law must also involve a fundamental change in the intellectual foundations on which legal scholarship is based. This change is what the scholars working in New Public Law call a “shift to instrumental thinking.” The shift requires that we reconsider how law works and why it works the way that it does.
In this new perspective, legislators and administrators do not think of the law as an embodiment of general principles; rather, they see it as an instrumental ity that serves a particular policy goal. For this reason, they are interested not in preserving an alogi cal pattern of prior decisions, but rather in making sure that the law ac tually accomplishes its purpose. In addition, because they are constrained by budgetary constraints, they tend to judge their efforts not by the coherence of existing laws, but by the cost-benefit analysis of those laws.
Thus, for scholars to speak meaningfully to legislators and administrators, they must be able to frame recommendations that are not merely alogically coherent with the established pattern of existing decisions, but which em body the instrumental model of the decisionmaker. This shift in analysis, while perhaps difficult for legal scholars to make, is essential if the New Public Law scholars are to be effective in their work.
This article attempts to describe this new mode of legal scholarship and its underlying ideas. It is a scholarly effort to produce an instrument for thinking about the law that will allow us to deal with the realities of our modern legislative and administrative system in a way that would be impossibly conceptualized if we thought only of ourselves as talking to judges.
For example, our legal system should provide the public with easy access to the process and statistics that underlie the decisions of government agencies. This is not a matter of partisanship; it is a matter of ensuring that our democratic form of government can function as it was intended to function, and that the people who live in this country will be able to have an informed say about their own lives. In this view, the process of making governmental decisions is as important as the final decision itself.