Document Type

Article

Publication Title

Michigan Law Review

Abstract

Implicit in New Public Law scholarship is a struggle to find ways to incorporate the most provocative insights it has spawned. Most arresting among these is the understanding that private preferences and public values are not static, but rather partially forged by the ongoing content and experience of public policy itself. Under this view preferences can be "adaptive," or "endogenous," or in the catch phrase of the New Left, politics is transformative: of values, experiences, understandings, and norms. New Public Law scholars have posed profound theoretical challenges to the traditional pluralist and modem Paretian-welfarist view that an ideal public policy should simply mirror existing values of individual citizens. Such insights expose the constitutive role of law and the cultural dimensions more generally of law and policy. They also expand the potential sites on which public law thought might focus, for if policy and culture are mutually defining, the causes and consequences of policy are pervasive. In the words of Professors Eskridge and Peller, "[l]aw is part of a web of sociopolitical structures that are constitutive - and reconstitutive - of our community." Yet when scholarship turns to concrete policy recommendations, this insight seems difficult to domesticate. In this essay, I want to try to build on it in order to suggest forms a genuinely New Public Law scholarship might take. My aim is to embrace much of what New Public Law thought has urged: the marginality of common law doctrine or judicial decisionmaking; the need to attend to profound disaffections with the modem regulatory state; an acceptance of the complex, dynamic relationship of public policy and private understandings; a recognition that public values are constituted not only at the grandest levels of policy formation, but also in the myriad microscopic day-to-day experiences of policy. In my view, taking these insights seriously requires neither new, formal, analytical definitions of law nor further abstract efforts to determine whether there "is" a New Public Law scholarship and how we might know it. Instead, incorporating these developments ought to lead to immersion in the concrete structures of specific public programs and policymaking techniques. Thus, this essay not only explores several contemporary areas of policy concern, including welfare, medical care, pro bono legal services, and military conscription, but also looks more generally at the characteristic tools of current approaches to the making of public policy.

First Page

936

DOI

https://doi.org/10.2307/1289525

Volume

89

Publication Date

1991

Download

Share

COinS