A few recent articles in legal journals have made grandiose claims about the newness of law. Unfortunately, these assertions are based on a mistaken conception of what makes something “new.”

As this article explains, the newness claimed by these scholars is not in the sense of having a novel idea, but rather that they have recast an old idea in a new manner. In a general sense, this recasting is often what makes something new, but in specific cases the change may only be slight and trivial. The problem here is that too many lawyers do not distinguish between the idea of a new approach and its actual practice, and they fail to recognize that even small changes can create newness in legal practice.

To make law new, legal scholarship must be prepared to abandon the old way of doing things and embrace the new. In particular, this means a shift from case-situated legal analysis to an era of lawmaking.

In this new era, legal decisionmakers do not see law as embodying a set of universal principles, but rather as an instrumentality for accomplishing a specific policy goal. Consequently, they do not treat prior enactments as authority in the same way that legal scholars have. Instead, they search for solutions that effec tively achieve a given purpose and then try to devise ways of implementing those solutions in a lawmaking process.

Legislators and administra tors use all kinds of instruments to implement their policy directives. These include legislative proposals, administrative regulations, memoranda and verbal orders, and negotiations and legislative hearings. However, most major policy initiatives are embodied in a formally enacted statute or regulation. Courts do intercede in this lawmaking process, but they seldom invoke transcendental principles and more frequently intervene on a supervisory basis.

Thus, the task for legal scholars is to develop a theory of how legislators and administrators translate policy goals into law, which in turn requires changing the conceptual framework within which legal scholarship takes place.

This is not a task for the faint of heart, but it does represent a significant departure from the prescriptive approach to legal scholarship that has character ized much of the academy since the formalist era. Nevertheless, it is a task that legal academics must undertake if they are to fulfill their self-declared purposes.

This article describes the characteristics of a new type of legal scholarship that could be called the New Public Law. This scholarly endeavor seeks to understand how legislators and adminis tators create new law, and in particular the processes that govern how they choose between alternatives for achieving a policy goal. Unlike many previous works on this subject, the New Public Law scholarship does not treat prior enactments as authority and instead searches for solutions that work best for a given policy goal. In doing so, this scholarship seeks to answer questions that legislators and administra tors ask themselves on a regular basis: What kind of rules work best? What sort of pol icy should be embodied in these rules? When does specificity work and when is it counterproductive?