The Unintended Cultural Consequences of Public Policy: A Comment on the Symposium
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.