LAWYERS AND REGULATION: THE POLITICS OF THE ADMINISTRATIVE PROCESS

Vol. 16 No. 4 (April, 2006), pp.294-298

LAWYERS AND REGULATION: THE POLITICS OF THE ADMINISTRATIVE PROCESS, by Patrick Schmidt. New York, NY: Cambridge University Press, 2005. 316pp. Hardback. £50.00/$90.00. ISBN: 0-521-84465-7.

Reviewed by James C. Foster, Oregon State University—Cascades. Email: James.foster [at] osucascades.edu

Patrick Schmidt’s book arrives at a time when congressional politics stands darkly in the shadow of Jack Abramoff, the DeLay-Santorum-Norquist K Street Project, and a slew of criminal indictments and pleas. Once again, lobbying and lobbyists appear less to be practicing free speech than peddling influence. In this environment, Schmidt proposes to analyze lawyers’ role in “the contemporary regulatory soup,” acknowledging at the outset “a pattern of concern regarding the influence and power of private interests” over administrative governance (pp.2, 3). His book is part of a lineage of policy analysis including Pressman’s and Wildavsky’s IMPLEMENTATION and Mazmanian’s IMPLEMENTATION AND PUBLIC POLICY. By addressing more fundamental questions pertaining to private power and democracy (albeit procedural democracy), Schmidt’s intellectual pedigree includes David E. Lilienthal, Emmette S. Redford, Grant McConnell, Theodore J. Lowi, and Marc Galanter.

Schmidt focuses on what lawyers who practice administrative law do. He sets out to explain what happens “in the gap between the text of a statute and the behavior of an individual regulated entity, [where] every step of the regulatory process can become a site for interpretation and contestation of what the law means” (p.3). He employs a case-study methodology, scrutinizing separate stages of the US Occupational Safety and Health Administration (OSHA) regulatory process as “arenas for legal representation” transforming “general principles into specific commands” (p.28). To this point, the reader might assume that the book under review is yet another garden variety treatment of the well-worn truism that, when it comes to the workings of the administrative state, discretion reigns. It is that—with a twist. The twist is that Schmidt proposes to shed light on the ways that lawyers’ “strategies of representation” (p.28) shape administrative discretion and what such strategies entail.

He begins by assaying “hypotheses about the role of lawyers” as they “reinterpret, redefine, recreate, and reconstitute the meaning of [regulatory] law in its particulars” (p.8). The brief section, “Lawyers in The Machinery of Law,” in his introductory chapter, provides useful reading. In the compass of ten pages (pp.7-17), Schmidt offers a mini-graduate refresher course on scholarly perspectives toward roles lawyers play in the regulatory process. Taking Stewart Macaulay’s influential 1993 analysis of business approaches to the regulatory state as his point of departure, Schmidt criticizes “the dichotomous assumptions present in research on lawyers” (p.13)—[*295] assumptions, it should be noted, that are rooted in a deep-seated American ambivalence about lawyers generally (compare, for instance, the films “Young Mr. Lincoln” and “Devil’s Advocate”). Schmidt characterizes the two poles of this dichotomy as being informed by the cliché about whether the glass is half empty or half full: “If regulations are born of the aspiration to the public good, then lawyers are a dangerous political force. If regulatory policy and law is fraught with risks, then lawyers help shepherd the law to efficient outcomes” (p.8).

While acknowledging that what he terms the “lawyers as friction/lawyers as grease” dichotomy partially captures social truths, Schmidt seeks to build a more complex “model of legal practice” (p.14) within the “public/private networks” (p.15) that constitute the administrative state. He frames his model on a foundation indebted to the work of John Heinz, Edward Laumann, Robert Nelson, and Robert Salisbury. Along the way, he nods in the direction of the path-breaking trilogy on trial court workgroups by James Eisenstein in collaboration with various combinations of Herbert Jacob, Roy B. Flemming, or Peter F. Nardulli. His goal is to explain “the microdynamics of lawyering in its distinctive legal setting . . . what do the many thousands of Washington lawyers operating in policy subspecialities do” (p.16)?

In the end, Schmidt finds that what regulatory lawyers do is function as “interest representatives” (pp.211-217). Now there is a nugget of original insight(!). If Schmidt’s finding regarding what lawyers do is not very novel, his analysis of how lawyers represent interests is informative. (As is often the case with competent mainstream social science, Schmidt’s contribution amounts to sophisticated understanding of prevailing common sense.) Reduced to its essentials, Schmidt argues that lawyers represent interests law-fully: “attorneys make clear to us how the dynamic and fluid world of contemporary regulatory politics has some forms of stability at its core . . . [helping] clients find order in law and law-like norms (pp.217-218). His account of the microdynamics of regulatory lawyering situates the law-full character of regulatory practice in the context of three sets of factors that shape particular roles lawyers interacting with OSHA play at any given time. He offers a “partial typology of influences in OSHA regulatory interactions” (Table 7.1, p.213), explaining briefly these three categories of influences—individual, situational, environmental. Acting together and discretely, these influences create a “highly situational and tangled web of factors in regulatory encounters . . . produc[ing] a wide range of roles that can be filled by intermediaries” (p.214).

While suggesting that a dozen consequent roles might be identified, Schmidt specifies five: Advocate, Shepherd, Educator, Diplomat, and Power-broker. At OSHA:

“[t]he administrative process for governing occupational safety and health . . . unquestionably puts particular emphasis on adversarial, quasi-judicial proceedings; nevertheless, a range of roles assists the process of translating [*296] interests into the logic of the system” (p. 217).

“Translating interests into the logic of the system”—this phrase nicely captures both the contribution of, and the limit to, Schmidt’s study.

Schmidt’s case study advances our knowledge of the ways that attorneys interacting with regulatory agencies, as he puts it, are “making politics, making law.” He sheds light on the sorts of behavior that occur in the so-called “shadow of the law” (p.219; see Coase, Mnookin, Cooter, Rossi, and Stevenson, but cf. Ellickson), revealing and explaining the strategies lawyers employ in shaping regulatory practice. Regulatory attorneys, one might say following Schmidt, are partisan repeat players. Operating out of particularistic motivational sets, and seeking to advance specific policy goals, regulatory lawyers also are committed to the process itself. Again, one might say that regulatory lawyers simultaneously value winning and keeping the game going; seeking at the same time to close legal options and keep law open-textured: “In repeated regulatory encounters, as iterations of a political game, each result affects in some way the calculations of parties who will meet again . . . [r]egulation through law produces a politics that is directed at multiple time-frames” (p.220). The term Schmidt uses to convey the seemingly paradoxical character of regulatory lawyering is “reflexivity” (p.220). He invokes a metaphor, shards of a shattered stained glass window, to describe the multifarious possibilities infused throughout the administrative process by self-referential strategies employed by regulatory attorneys—“shards of a shattered stained glass window [in which] it may be difficult to find order . . . but . . . may still impress” (p. 222). He explains:

Law is an enactment of existing relationships and structures, which can evolve or endure in its setting. . . .[L]aw structures and engenders attitudes; law embodies cultural and technological assumptions undergirding decisionmaking; law creates perceptions by actors about who possess legitimate authority, thus helping to structure informal relationships; and further, the absence of formal law in some contexts can create space for the emergence of its replacements (pp.221-222).

For Schmidt, at base then, lawyering shapes the logic of the system.

This vantage point is all well and good—as far as it goes. But Schmidt’s analysis bleaches the substantive coloration out of the politics of the administrative process. Making regulatory politics may well amount to making law. Still, regulatory policies, understood in terms of concrete behavioral outcomes by specific actors, advance or retard material interests. It is both sort of curious and sort of ironic that Schmidt marginalizes the outcomes of conflict in administrative politics. It is curious because, from the outset of his study, Schmidt clearly understands that regulatory lawyers “are . . . representatives of private interests” (p.2) and that “[a] regulatory bar is built by the needs of corporate clients” (p.52). It is ironic because Schmidt chose OSHA as the focus of his case study, and: [*297]

[g]iven its origins and underpinnings, OSHA’s early history was marked by an unbroken chain of conflicts between the highly partisan advocates of labor unions and business interests. The legislative history of the OSH Act evinces firm resistance by business to a safety and health agency, while the labor union coalition pressing for its adoption acquiesced in a number of important compromises to secure the Act’s passage. . . . OSHA policy persevere[s] . . . through a stasis of “conflict as usual” (p.22).

Schmidt’s “apolitical” take on regulatory politics is only “sort of” curious and “sort of” ironic because he focuses on process. By formulating his study in terms of how lawyers read their procedural interests into the system’s logic, he short-changes analysis of which material interests shape regulatory logic.

Thus, Schmidt’s work has fairly constrained horizons. (It reads like it is a revised dissertation, with its narrow gauge and its limited scope.) This is disappointing because early on, it promises to be more. On the third page of his book Schmidt clearly points the reader toward a central tension (perhaps the central tension) of American government: the relationship between the public realm and the privately-ordered economy: “Individuals who represent public and private interests are positioned to shape the distribution of wealth and welfare, and through their actions, to give rise to wider structures of political advantage” (p.3). He speaks of how “a fundamental tension” accompanies administrative politics “every step of the way . . . between choices of interest and values, on the one hand, and the desire for process on the other” (p.3). In LAWYERS AND REGULATION Schmidt concentrates on the latter pole of this tension. Perhaps in a complementary sequel he will turn his attention to the former.

REFERENCES:

Coase Ronald H. 1960. “The Problem of Social Cost.” 3 JOURNAL OF LAW AND ECONOMICS 1-44.

Cooter, Robert, Stephen Marks and Robert Mnookin. 1982. “Bargaining in the Shadow

of the Law: A Testable Model of Strategic Behavior.” 11 JOURNAL OF LEGAL STUDIES 225-251.

Eisensten, James, and Herbert Jacob. 1977. FELONY JUSTICE: AN ORGANIZATIOAL ANALYSIS OF CRIMINAL COURTS. Boston, MA: Little, Brown and Co.

Eisensten, James, Roy B. Flemming, and Peter F. Nardulli. 1988. THE CONTOURS OF JUSTICE: COMMUNITIES AND THEIR COURTS. Boston, MA: Little, Brown and Co.

Ellickson, Robert. 2005. ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES. Cambridge, MA: Harvard University Press.

Flemming, Roy B., Peter F. Nardulli and Eisensten, James. 1992. THE CRAFT OF JUSTICE: POLITICS AND WORK IN CRIMINAL COURT COMMUNITIES. Philadelphia, PA: University of Pennsylvania Press. [*298]

Ford, John. 1939. “Young Mr. Lincoln.” The Criterion Collection.

Hackford, Taylor. 1997. “Devil’s Advocate.” Warner Home Video.

Heinz, John P., Edward O. Laumann, Robert L. Nelson, and Robert H. Salisbury. 1993. THE HOLLOW CORE: PRIVATE INTERESTS IN NATIONAL POLICY MAKING. Cambridge, MA: Harvard University Press.

Macaulay, Stewart. 1993. “Business Adaptation to Regulation: What Do We Know and What Do We Need to Know?” 15 LAW AND POLICY 259-270.

Mazmanian, Daniel A., and Paul A. Sabatiere. 1989. IMPLEMENTATION AND PUBLIC POLICY. Lanham, MD: University Press of America.

Mnookin, Robert N. and Lewsis Kornhauser. 1979. “Bargaining in the Shadow of the Law: The Case of Divorce.” 88 YALE LAW JOURNAL 950-977.

Nelson, Robert L., and John P. Heinz, with Edward O. Laumann and Robert H. Salisbury. 1988. “Lawyers and the Structure of Influence in Washington.” 22 LAW AND SOCIETY REVIEW 237-300.

Pressman, Jeffery L. and Aaron Wildavsky. 1984. IMPLEMENTATION (3rd expd. Ed.). Berkeley, CA: University of California Press.

Rossi, Jim. 2001. “Bargaining in the Shadow of Administrative Procedure: The Public Interest in Rulemaking Settlement.” 51 DUKE LAW JOURNAL 1015-1058.

Stevenson, Betsey and Justin Wolfers. 2003. “Bargaining in the Shadow of the Law: Divorce Laws and Family Distress.” Stanford Law and Economics Olin Working Paper No. 273; Stanford Law School, Public Law Working Paper No. 73.

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