This page intentionally left blank This page intentionally left blank LAWYERS AND REGULATION The Politics of the Administrative Process This book is a close study of lawyers who practice occupational safety and health law in the United States, using detailed interview and survey data to explore the roles that lawyers have as representatives of companies, unions, and OSHA (the Occupational Safety and Health Administra- tion). Placed in the context of evolving understandings of regulatory pol- itics as a problem of public–private interaction and negotiation, the book argues that lawyers adapt to multiple roles in what prove to be highly complex settings. The core chapters examine stages of the administrative process where various groups attempt to shape the immediate outcomes and the development of OSHA law. These stages include administrative rulemaking, post-rulemaking litigation of government standards, regula- tory enforcement, and compliance counseling by lawyers. PATRICK SCHMIDT received his B.A. from the University of Min- nesota (1993) and a Ph.D. from Johns Hopkins University (1999). Prior to taking up his current post as Assistant Professor of Political Science at Southern Methodist University, he was the John Adams Research Fellow at the Centre for Socio-Legal Studies and a research fellow of Nuffield College, Oxford. He has published widely and is co-editor, with Simon Halliday, of Human Rights Brought Home: Socio-Legal Studies of Human Rights in the National Context (2004). CAMBRIDGE STUDIES IN LAW AND SOCIETY Cambridge Studies in Law and Society aims to publish the best scholarly work on legal discourse and practice in its social and institutional con- texts, combining theoretical insights and empirical research. The fields that it covers are: studies of law in action; the sociology of law; the anthropology of law; cultural studies of law, including the role of legal discourses in social formations; law and economics; law and politics; and studies of governance. The books consider all forms of legal discourse across societies, rather than being limited to lawyers’ discourses alone. The series editors come from a range of disciplines: academic law; socio-legal studies; sociology; and anthropology. All have been actively involved in teaching and writing about law in context. Series Editors Chris Arup Victoria University, Melbourne Martin Chanock La Trobe University, Melbourne Pat O’Malley Carleton University, Ottawa Sally Engle Merry Wellesley College, Massachusetts Susan Silbey Massachusetts Institute of Technology Books in the Series The Politics of Truth and Reconciliation in South Africa Legitimizing the Post-Apartheid State Richard A. 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Rodriguez-Garavito 0 521 84540 8 hardback 0 521 60735 3 paperback LAWYERS AND REGULATION The Politics of the Administrative Process Patrick Schmidt    Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge  ,UK First published in print format - ---- - ---- © Patrick Schmidt 2005 2005 Information on this title: www.cambrid g e.or g /9780521844659 This book is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. - --- - --- Cambridge University Press has no responsibility for the persistence or accuracy of s for external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Published in the United States of America by Cambridge University Press, New York www.cambridge.org hardback eBook (EBL) eBook (EBL) hardback [...]... legislative mandates to applications of law in practice, with a fundamental tension, every step of the way, between choices of interest and values, on the one hand, and the desire for process on the other This study brings together concern for the administrative process and the role of lawyers by focusing on the roles, strategies, and attitudes of attorneys practicing before the US Occupational Safety and Health... how do the contributions of lawyers qua lawyers, with everything that implies for the role of law, construct the politics of the administrative process? These questions lie at the intersection of two key themes featured in debates about contemporary administrative governance: how regulatory agencies bargain and dispute with private interests over the creation and application of general rules; and, more... to hold the notion that if regulatory lawyers are not the equivalent of lobbyists “moving and shaking” the government on behalf of corporate interests, then they are merely technicians of the law without an appreciable impact on administrative politics The simplicity of these visions is understandable, not least because if the advocacy made by lawyers is not presented with the color and force of a lobbyist,... into specific commands and incentives? This is not to limit administration to a “top-down” process Rather, in the gap between the text of a statute and the behavior of an individual regulated entity, every step of the regulatory process can become a site for interpretation and contestation of what the law means Selection and design of administrative processes shapes resulting politics and policy, but... ideals of a free-ranging policy process and a process encumbered by mechanisms of accountability The most distinguishing feature of regulatory systems is the necessity of discretion – political choice – infused throughout the administrative state.2 The expansion of bureaucratic processes, perhaps the most profound alteration to the political landscape in the twentieth century, has generated awareness of. .. contributors to the successful operation of law To view lawyers simply as legal “grease” that lubricates the application of general rules to particular problems is to overlook that lawyers are coopted by the elite interests they represent Whatever their methods, lawyers undermine the objectives of regulation 12 INTRODUCTION Lawyers and the complexity of regulatory politics The assertion that any body of writing,... Howard and Joel Grossman were meticulous and inspiring in the early stages of this project, and no young scholar could hope to find a better pair of mentors Despite his protests to the contrary, very little of this book or my career would have been possible without David Yalof’s direction, professional and otherwise The support of many institutions and the people in them deserves mention: the Department of. .. in regulatory settings The unexamined questions at the juncture between lawyers and regulation are many and basic: What do attorneys do for their clients? How do attorneys perceive their role in administrative settings and how do these perceptions affect their dialogues with clients? In what ways do the activities of lawyers shape – and how are they shaped by – the agencies they encounter? Perhaps... background variable when examining regulation as a political and social phenomenon Administrative politics, especially in the United States – and increasingly outside of it, as discussed later – rarely occurs far from the influence of the law and legal concepts That is, the basic steps of the regulatory process, such as setting an agenda, deciding the form and content of public participation, making substantive... scientists to confront how law and legal norms affect behavior Ultimately, notions of law and legal interpretation can become a focal point for attempts to bridge the gap between the micro-level interactions of interests and the middle-range attempts to understand how the administrative state “works.” In order to probe further into the overlap of lawyers and regulatory politics, the next section begins by . left blank LAWYERS AND REGULATION The Politics of the Administrative Process This book is a close study of lawyers who practice occupational safety and health. 521 60912 7 paperback Lawyers and Regulation The Politics of the Administrative Process Patrick Schmidt 0 521 84465 7 hardback Law and Globalization from