Will a Credible Public Please Stand Up?

David Pozen

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.