The New Public Law Movement: Moderation as a Postmodern Cultural Form
The past twenty years have witnessed an explosion of public law scholarship, as legal scholars reconceptualized themes of administrative law, legislation, and constitutional law; created almost from scratch whole new areas of public law scholarship, including discrimination, environmental, and consumer protection theory; and enlivened discourse with concepts drawn from microeconomics, public choice theory, civic republicanism, practical philosophy, and hermeneutics. This intellectually intense activity has suggested the possibility that public law discourse has entered a “critical stage” and stimulated the Michigan Law Review to hold a conference in October 1990 on whether there is something that might be called “New Public Law.” At first we thought there certainly was. We still do, but on further reflection we think that the more interesting inquiry is how these new developments in public law relate to the recent politicization of jurisprudence.
This inquiry was a daunting project for us, in part· because the complexity of the historical analysis and our tendency toward abstraction continually threatened to blur the focus of the inquiry, namely, to identify and analyze a “movement” within legal scholarship. Also~ we approached the topic from very different perspectives. One of us viewed the New Public Law as an exciting positive development, the other viewed it with skepticism. What we needed was a method for concretizing the discussion and for presenting its historical complexity and for allowing us to explore our own differences of perspective. Based upon these concerns, we have chosen to focus on two state court cases, one involving nuclear protesters and the other involving a Catholic university’s refusal to recognize a gay and lesbian student group. We use these cases as a grounding to present three accounts of twentieth-century American legal thought, each of which illuminates new developments in public law in a different but perhaps complementary way.