Structure, Relationship, Ideology, or, How Would We Know a “New Public Law” If We Saw It?

Academic writings and judicial opinions are the research materials most accessible to legal academics. It is thus unsurprising that, when asked to discuss “New Public Law,” professors of administrative law, constitutional law, and legislation focus chiefly on emerging scholarship and judicial output. This tendency illustrates the general and quite understandable phenomenon that people, including law professors, do most whatever they can do most readily.

Nevertheless, however elegantly and provocatively we analyze each other’s work and the labor of judges, discerning whether a new public law exists ought to involve a broader inquiry. In this essay I explore the complexity of the inquiry. Although I seek to provide some reasons for thinking that, in various respects, we may or may not have a New Public Law, my purpose is not to answer that inquiry definitively but rather to provide a sharpened awareness of the breadth of issues that the inquiry poses.