Amid the turmoil of the current legal climate, firms are looking for new ways to serve clients. One concept that has emerged is the idea of law new. This involves offering help in a way that differs from traditional practice and that can be done more cost efficiently. The idea has the potential to be extremely beneficial for a firm that takes the time to understand how it works and how it can be used effectively.
The concept of law new is based on the fact that many legislative and administrative decisions do not count as “law” in the conventional sense, because they do not embody general principles and are not based on judicial review. Instead, they implement policy goals by encoding them in an instrument, such as an administrative rule or a statute. The emergence of this sort of policy-oriented decisionmaking has produced a number of new questions for legal scholars: Which rules work best? How can they be developed, and when is specificity desirable or counterproductive? What is the role of public participation in developing law, and how can that be secured?
These new questions are fundamentally different from the doctrinal questions that have long been at the heart of legal scholarship. They require a broader conceptual horizon and a greater emphasis on social analysis and empirical observation. In addition, they call for a more close cooperation with other disciplines, especially political science, econo mists, and sociology, which have tools for studying the effects of laws and policymaking more than do legal academics.
Some critics have objected that this new approach would inevitably transform legal scholarship into something like public policy or social science. They have a point: such an approach requires a major shift in the conception of law that legal scholars hold. However, it is possible to change this conception without destroying legal scholarship as we know it. A transformation of this sort need not lead to the abandonment of legal studies as a prescriptive discipline; it can simply mean that its methods, training, and institutional organization will need to be transformed.
If we want to change the world, we need to do it in ways that are both practical and intellectually sound. The first step is to recognize that the problems we face are not just legal, but also political and economic. Then we can begin to see how they intersect. And if we can develop a theory of law that is informed by this understanding, we can begin to formulate a solution that will make the world a better place. It will take time, but it can be done. And it will be worth the effort. The future of our legal system is at stake.