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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. Wilson
0 521 80219 9 hardback
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Modernism and the Grounds of Law
Peter Fitzpatrick
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Unemployment and Government
Genealogies of the Social
William Walters
0 521 64333 3 hardback
Autonomy and Ethnicity
Negotiating Competing Claims in Multi-Ethnic States
Yash Ghai
0 521 78112 4 hardback
0 521 78642 8 paperback
Constituting Democracy
Law, Globalism and South Africa’s Political Reconstruction
Heinz Klug
0 521 78113 2 hardback
0 521 78643 6 paperback
The New World Trade Organization Agreements
Globalizing Law through Services and Intellectual Property
Christopher Arup
0 521 77355 5 hardback
The Ritual of Rights in Japan
Law, Society, and Health Policy
Eric A. Feldman
0 521 77040 8 hardback
0 521 77964 2 paperback
The Invention of the Passport
Surveillance, Citizenship and the State
John Torpey
0 521 63249 8 hardback
0 521 63493 8 paperback
Governing Morals
ASocial History of Moral Regulation
Alan Hunt
0 521 64071 7 hardback
0 521 64689 8 paperback
The Colonies of Law
Colonialism, Zionism and Law in Early Mandate Palestine
Ronen Shamir
0 521 63183 1 hardback
Law and Nature
David Delaney
0 521 83126 1 hardback
Social Citizenship and Workfare in the United States and
Western Europe
The Paradox of Inclusion
Joel F. Handler
0 521 83370 1 hardback
0 521 54153 0 paperback
Law, Anthropology and the Constitution of the Social
Making Persons and Things
Edited by Alain Pottage and Martha Mundy
0 521 83178 4 hardback
0 521 53945 5 paperback
Judicial Review and Bureaucratic Impact
International and Interdisciplinary Perspectives
Edited by Marc Hertagh and Simon Halliday
0 521 83918 1 hardback
0 521 54786 5 paperback
Immigrants at the Margins
Law, Race, and Exclusion in Southern Europe
Kitty Calavita
0 521 84663 3 hardback
0 521 60912 7 paperback
Lawyers and Regulation
The Politics of the Administrative Process
Patrick Schmidt
0 521 84465 7 hardback
Law and Globalization
from Below
Toward a Cosmopolitan Legality
Edited by Boaventura de Sousa Santos
and Cesar A. 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
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© 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.
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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)
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[...]... 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
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