Public law discourse and
practice revolve around the concept of the public. Public opinion
is said to constrain the Court, curtail executive abuse, and determine the
winner of interbranch conflicts. Agencies are asked to regulate for the
public welfare while complying with public records laws, public meetings
laws, and public notice laws. Courts grant preliminary injunctions in the public
interest. And on and on.
But who or what is this public that
is endlessly invoked as a source of practical guidance and democratic
legitimacy for public law institutions and decisions? And how do the
decisionmakers know what “it” wants or needs? Clear answers to these questions are elusive, as contemporary legal scholars and practitioners tend to appeal to the public without a great deal of specification or reflection.
In a new paper titled Looking for the Public in Public Law, political theorist Nikhil Menezes and I try
to document this slipperiness; show how it elides important conceptual, empirical,
and normative difficulties that have become increasingly acute in recent years;
and suggest possible responses.
Here is the abstract:
The “public” is everywhere and
nowhere in contemporary public law. Everywhere, in that the term is constantly
invoked to justify and explain existing arrangements. Nowhere, in that serious
attempts to identify a relevant public and elicit its input are few and far
between. Scholars and officials depict the American public as playing myriad
roles in governance—checking, guiding, approving, repudiating—without offering
an account of how public preferences are formed or how they exercise influence
on the questions of interest.
This Article seeks to identify and
call attention to the foundational dilemmas underlying this disconnect, to
clarify their normative contours and intellectual history, and to propose a
pragmatic response—grounded in the recovery of the public’s role as an author
and not just a monitor of public law. We first detail how public law’s
stylized appeals to the public reflect analytic imprecision and inattention to
the values, views, and votes of actual people. We then show how these omissions
and obfuscations leave public law vulnerable to critiques from both the left
and the right, which have been gaining force on account of broad
transformations in the administrative state, social structure, and public
sphere. It may not be possible to resolve these dilemmas fully or to redeem the
public writ large as an agent in public law. But drawing on recent political
science work on deliberative democracy, we outline a research and reform agenda
for identifying, constructing, and empowering coherent publics (plural) capable
of legitimating legal change.