New law involves a different way of helping clients and also generating income for a firm. It also encompasses a more holistic approach to legal services, embracing technology and focusing on processes. It also entails a less traditional fee structure. This type of work can be done by any legal firm, but it is particularly well-suited to firms that are looking for new ways to generate value and boost revenue.
It is a new kind of scholarship because it shifts the audience for legal analysis from judges to legislators and administrators. This change in audience alters the nature of the questions that scholars ask and the mode of analysis they employ. It also changes the conceptual model of law that scholars adopt.
When legislators and administra tors think about law, they tend to conceive of it as an instrumental tool for achieving specific policy goals. To address this audience, New Public Law scholarship must take a similarly instrumental approach. It should avoid treating previous judicial decisions as authoritative, and instead use them as a source of data about how laws have performed in the past. It should then frame statutory and administrative recommendations that seek to effec tively achieve the same goals that judicial decisions have aimed at.
Moreover, New Public Law scholarship must develop more general theories about its subject matter than the treatises that flourished in the formalist era. These theories might address issues that are recognizable to existing legal scholars – for example, how private causes of action should be enforced, or how a particular agency’s enforcement strategy should be structured. Moreover, it will probably be necessary to incorporate insights and techniques from social science disciplines like political science and econo mists, whose analyses of institutions like courts and agencies often appear in legal literature.
As these new characteristics of legal scholarship become more established, the term “law new” will be used to refer to a broad array of scholarship that rethinks and reforms existing law. While it will continue to include work that addresses the needs of judges, legislators and administra tors will come to expect that legal scholarship be designed to help them address the most important issues facing their constituents and society as a whole.
Those who object to the notion of a law-new movement might argue that it is impossible for legal scholars to change their fundamental orientation if they remain bound by the existing system of academic accreditation and institutional structures. But this objection misses the point. The fact is, it is not possible to conceive of law without a pres dection to some kind of definitional meaning – that law is a system for controlling people, specifically officials who wield power; that law is a conceptual system with an inherent logic; or that law is a moral sys tem, embodying widely held or transcendental values. Each of these three meanings is relevant to the study of law. But the most relevant is the last one.