Between government and client: The roles of lawyers in negotiating and disputing administrative regulation

This study examines the roles of lawyers in regulating workplaces and securities markets in the United States. Scholarly and popular understandings of this subject do not explain fully the dynamics of representation in administrative law and politics. Most theories are projections from adjudication in courts, where adversaries present claims of right for decisions by neutral umpires. Neglected are more complex regulatory environments in which the same officials exercise legislative, executive, and judicial functions and their discretion is ostensibly limited by science and professional expertise. The few accounts of administrative lawyering accent two polar functions: attorneys supply “grease” by helping parties negotiate efficient outcomes and influence administrative discretion as well as “friction” by frustrating regulators' efforts to apply general legislative principles to specific problems and cases.; In order to synthesize and refine prior explanations, this dissertation describes the activities, strategies, and roles of private attorneys in rulemaking and enforcement of the U.S. Occupational Safety and Health Administration (OSHA). Special consideration is given to the conditions under which lawyers help and hinder cooperation between government and business. The evidence draws from over 100 interviews with government officials, attorneys, and labor union representatives as well as a national survey of 232 members of the private OSHA bar.; The central conclusion is that lawyers fill many roles in “two-way streets” of communication among the regulators and the regulated. Attorneys may serve as advocates, educators, mediators, power-brokers, and shepherds. These roles—dynamic, overlapping, and interactive—are often chosen strategically. A comparison with attorneys practicing before the Securities and Exchange Commission (SEC) also suggests the potential for legal counseling to facilitate compliance with government regulations. While these roles may not differ in kind from those in complex adjudication, the evidence suggests they differ substantially from conventional accounts of how lawyers view their work in the regulatory process.