Public Law from the Bottom Up

Abstract

American public law has traditionally been understood as an insider's game. Within this understanding, law is following the rules laid down, particularly those laid down by the United States Supreme Court. Rigorous legal analysis treats Supreme Court opinions as self-contained exercises to be understood or criticized from the inside - from the point of view of the Supreme Court Justices who write them. Thus, a turn-of-the-century formalist would try to situate a decision in the larger geometric unity of law, or might fault a decision for being inconsistent with precedent. Although the realists of the 1920s rejected this sort of analysis and more aggressively criticized the Court, they too read the cases through the eyes of the Court - albeit a Court following a political or personal agenda. The legal process school of the 1950s was realist in understanding law as policy and formalist in evaluating the Court through criteria such as reasoned elaboration, deference, and coherence with neutral or authoritative principles. But like the formalists and the realists before them, legal process thinkers were insiders, viewing law from the perspective of the New Deal Presidency and Court.