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The New Public Law Movement: Moderation As a Postmodern Cultural Form

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The New Public Law Movement: Moderation As a Postmodern Cultural Form THE NEW PUBLIC LAW MOVEMENT: MODERATION AS A POSTMODERN CULTURAL FORM William N. Eskridge, Jr.* and Gary Peller** The past twenty years have witnessed an explosion of public law scholarship, as legal scholars reconceptualized themes of administra- tive law, legislation, and constitutional law; created almost from scratch whole new areas of public law scholarship, including discrimi- nation, environmental, and consumer protection theory; and enlivened discourse with concepts drawn from microeconomiqs, 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"1 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 abstrac- tion 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 * Professor of Law, Georgetown University. B.A. 1973, Davidson College; M.A. 1974, Harvard University; J.D. 1978, Yale. - Ed. ** Professor of Law, Georgetown University. B.A. 1977, Emory; J.D. 1980, Harvard Uni- versity. - Ed. We are grateful to Alex Aleinikoff, Dan Ernst, Dan Farber, Cynthia Farina, Phil Frickey, Mike Seidman, Joe Singer, Cass Sunstein, and Mark Tushnet for comments on earlier versions of this article, to the participants in the Michigan Law Review's Conference on the New Public Law for their criticism of the earliest vetsion of this article, and to participants in faculty workshops at Boston University Law School and the Georgetown University Law Center for their most con- structive sessions with us. Bruce Knivila provided valuable research assistance. Dean Judy Areen and Associate Dean Wendy Williams provided financial support for this project; we thank them for that support and their intellectual encouragement. 1. B. ACKERMAN, RECONSTRUCTING AMERICAN LAW 24 (1984). HeinOnline -- 89 Mich. L. Rev. 707 1990-1991 Michigan Law Review [Vol. 89:707 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 Cath- olic university's refusal to recognize a gay and lesbian student group. We use these cases as a grounding to present three accounts of twenti- eth-century American legal thought, each of which illuminates new developments in public law in a different but perhaps complementary way. The first story is a fairly conventional one, focusing on the con- tinuity of modern legal discourse and the way in which recent public law scholarship carries on the legal process tradition. This account emphasizes the legal process synthesis, which constituted a new center for American law, a center that denied the legal realists' "extreme" charges, even while assimilating the ideological assumptions of the New Deal into a strong and systematic philosophy supportive of the new elite-endorsed status quo in America. By 1958, legal process the- ory had achieved consensus status in legal academic circles, a consen- sus that has dominated public law scholarship for the past thirty years. Challenges from law and economics and critical legal studies (CLS) in the 1970s have undermined legal process' intellectual prestige in legal discourse, yet the legal process focus on institutional relationships, the process of lawmaking, and an overriding standard of purposive coher- ence continues to dominate public law scholarship. Indeed, most of the new developments in public law scholarship - civic republican- ism, public choice theory, and law and interpretation - are still usu- ally presented in legal process ways. If the first story is one of continuity, the second story is one of generational and political rupture. At the same time that elite legal scholars were crafting the legal process materials, oppositionist law- yers, activists, and scholars were challenging the system of racial apartheid through the civil rights movement. The generation of schol- ars that followed the legal process founders (our generation of baby- boomers) was molded by the civil rights movement and by the con- comitant critique of the political theory underlying the legal process philosophy. What might truly be called New Public Law has been a rethinking of political assumptions by legal scholars in the 1970s and 1980s. The key intellectual moves include an antipluralism which re- jects the idea that political preferences are exogenous to politics; an embrace of the normativity of law, i.e., that law's legitimacy depends upon substantive justice and not procedural correctness; and a practi- cal reasoning which seeks to reconcile colliding community norms HeinOnline -- 89 Mich. L. Rev. 708 1990-1991 February 1991] New Public Law through dialogue and reconciliation. The New Public Law philosophy is evident across the various public law categories. Our third version of the development of a New Public Law schol- arship describes it as a genre in the particular context of the polariza- tion of academic legal discourse in the 1970s and 1980s. There is nothing inevitable about the continuation and reform of the legal pro- cess ideology that we describe in the first two sections. In part, what identifies the New Public Law as a genre of scholarship is a genera- lized sense of writers making similar choices in a relatively charged ideological setting. As a movement, the New Public Law is unmistak- ably situated as a "center" between what is perceived as an overly objectivist and conservative law and economics and an overly con- frontational and politicizing CLS. In our description, the New Public Law contains two roughly distinct subgroups that echo this external structure: New Public Law scholarship focusing on public choice the- ory and on the "fit" of social problem and regulatory mechanism is a subdued version of the technocratic tendencies of the law-and-eco- nomics right; the emphasis on indeterminacy and the inevitability of choice in a distinctly progressive wing of New Public Law scholarship is likewise an echo of the left's emphasis on the politics of social con- struction. A great part of the attraction of the movement relates to the fact that it is generally tilted toward the left in terms of its intellectual positions. This intellectual overlap is evident in the proclaimed rejec- tion of "positivist" or "objectivist" epistemology that lends a postmodern feature to a significant amount of New Public Law schol- arship even if one would not think of the work as avant garde in any other sense. Like characteristic CLS work, the New Public Law scholarship rejects objectivist imagery about law. Law does not reside in a text, waiting to be pulled out by a subject (formalism), nor is it law simply because the subject declaring it is the duly established insti- tution (legal process). Instead, law is socially constructed, a matter of continuous popular, as well as institutional, interpretation. This powerfully radical idea links the New Public Law to CLS. I. THE JURISPRUDENCE OF PROCEDURALISM AND THE NEW LEGAL PROCESS At the center of our first story (the story of continuity) is the legal process synthesis that evolved in the period between 1940 and 1958.2 2. We use these dates because they represent the publication dates of two legal process clas- sics: L. FULLER, THE LAW IN QUEST OF ITSELF (1940), which represented mainstream aca- demics' rejection of legal realism and the beginnings of their quest for a unified way of thinking about law, and H. HART & A. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING HeinOnline -- 89 Mich. L. Rev. 709 1990-1991 Michigan Law Review [Vol. 89:707 The legal process position represented a victory over opposing legal ideologies, particularly the common law formalists, who represented a conservatism repudiated by the New Deal, as well as the critical legal realists, who argued that all law is politics and thereby impugned the neutrality and legitimacy of law. Like the realists, for example, the process theorists viewed law as purposive and dynamic, but protected the legitimacy and objectivity of law by focusing on the process and institutions by which law evolved. Legal process transformed public law discourse, legitimating the modem regulatory state without sacrificing its flexibility in a dynamic world. But from the beginning, legal process theory was beset by a tension between its legitimating methodology (proceduralism and in- stitutional competence) and its goal (dynamic purposive law). That tension generated both liberal and conservative legal process tradi- tions. Over time, external attacks from the right (law and economics) and the left (CLS) exacerbated this internal tension. There emerged in the 1970s and 1980s a distinctively progressive movement within the legal process tradition, but also seeking to transform that tradition, by shifting its focus decisively from proceduralism and institutional com- petence to dynamic purposive law that meets the community's sub- stantive needs. This is a "new" movement, but more a "new legal process" than a watershed in thinking about public law. We want to tell this story in more detail by reference to the "Case of the Nuclear Protesters," State v. Warshow. 3 John Warshow and his colleagues traveled to Vernon, Vermont, to. protest against alleged safety risks at the main gate of the Vermont Yankee nuclear power plant and to prevent it from restarting after a shut-down, for repairs.
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