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Pursuing Regulatory Relief: Strategic Participation and Litigation in U.S. OSHA Rulemaking

Published online by Cambridge University Press:  20 January 2017

Patrick Schmidt
Patrick Schmidt*
Affiliation:
Centre for Socio-Legal Studies and Nuffield College, University of Oxford
*
University of Oxford, Centre for Socio-Legal Studies, Wolfson College, Linton Road, Oxford OX2 6LB, United Kingdom. Email: patrick.schmidt@csls.ox.ac.uk.
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Abstract

Administrative agencies in the United States have developed highly formalized and complex processes for public participation in rulemaking, especially in areas of social regulation such as the environment and workplace safety and health. This case study considers the significance of participation in formal rulemaking processes by connecting the quality of participation to the strategic possibilities in litigation between private interests and regulatory agencies. Specifically, the strategic possibilities of the leading interest groups engaged in the Occupational Safety and Health Administration's major “Lockout/Tagout” rulemaking illustrate how legal resources are created through the development of evidence and claims in hearings. Written and oral presentations, apparently aimed directly at persuading the agency, indirectly affect agency deliberations by increasing the possibility that courts will constrain agency decisionmaking, thus creating opportunities for negotiated alternatives. The case ultimately serves as a paradigmatic example of how bargaining arises at the micro level of policy systems that are infused with broader legal structures.

Type
Research Article
Information
Business and Politics , Volume 4 , Issue 1 , April 2002 , pp. 71 - 89
Copyright
Copyright © V.K. Aggarwal 2002 and published under exclusive license to Cambridge University Press 

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References

Breyer, Stephen. 1993. Breaking the Vicious Circle: Toward Effective Risk Regulation. Cambridge, MA: Harvard University Press.Google Scholar
Coglianese, Cary. 1996. “Litigating within Relationships: Disputes and Disturbance in the Regulatory Process.” Law and Society Review 30: 735–765.CrossRefGoogle Scholar
Fiss, Owen M. 1984. “Against Settlement.” Yale Law Journal 93: 1073–1090.CrossRefGoogle Scholar
Frantz, Douglas and McKean, David. 1995. Friends in High Places: The Rise and Fall of Clark Clifford. Boston, MA: Little, Brown & Co.Google Scholar
Gaba, Jeffrey M. 1985. “Informal Rulemaking by Settlement Agreement.” Georgetown Law Journal 73: 1241–1282.Google Scholar
Goulden, Joseph C. 1972. The Superlawyers: The Small and Powerful World of the Great Washington Law Firms. New York: Weybright and Talley.Google Scholar
Heinz, John P., Nelson, Robert L., Laumann, Edward O. and Salisbury, Robert H. 1993. The Hollow Core: Private Interests in National Policy Making. Cambridge, MA: Harvard University Press.Google Scholar
Kelman, Steven. 1981. Regulating America, Regulating Sweden: A Comparative Study of Occupational Safety and Health Policy. Cambridge, MA: MIT Press.Google Scholar
Kemp, Kathleen. 1986. “Lawyers, Politics and Economic Regulation.” Social Science Quarterly 64: 267–282.Google Scholar
Kerwin, Cornelius. 1998. Rulemaking: How Government Agencies Write Law and Make Policy. 2nd edition. Washington, DC: CQ Press.Google Scholar
Luban, David. 1995. “Settlements and the Erosion of the Public Realm.” Georgetown Law Journal 83: 2619–2662.Google Scholar
Mashaw, Jerry L. and Harfst, David L. 1987. “Regulation and Legal Culture: The Case of Motor Vehicle Safety.” Yale Journal on Regulation 4: 257–316.Google Scholar
McGarity, Thomas O. 1992. “Some Thoughts on ‘Deossifying’ the Rulemaking Process.” Duke Law Journal 41: 1385–1462.CrossRefGoogle Scholar
McGarity, Thomas O. and Shapiro, Sidney A. 1993. Workers At Risk: The Failed Promise of the Occupational Safety and Health Administration. Westport: Praeger Press.Google Scholar
Melnick, R. Shep. 1983. Regulation and the Courts: The Case of the Clean Air Act. Washington, DC: Brookings Institution.Google Scholar
Mendlehoff, John M. 1988. The Dilemma of Toxic Substance Regulation: How Overregulation Causes Underregulation at OSHA. Cambridge, MA: MIT Press.Google Scholar
Mitchell, Neil J. 1997. The Conspicuous Corporation: Business, Public Policy and Representative Democracy. Ann Arbor, MI: University of Michigan Press.CrossRefGoogle Scholar
Nelson, Robert L. and Heinz, John P., Laumann, with Edward O. and Salisbury, Robert H. 1988. “Lawyers and the Structure of Influence in Washington.” Law and Society Review 22: 237–300.CrossRefGoogle Scholar
Noble, Charles. 1986. Liberalism at Work: The Rise and Fall of OSHA. Philadelphia, PA: Temple University Press.Google Scholar
Pierce, Richard J. Jr. 1991. “The Unintended Effects of Judicial Review of Agency Rules: How Federal Courts Have Contributed to the Electricity Crisis of the 1990s.” Administrative Law Review 43: 7–29.Google Scholar
Pierce, Richard J. Jr. 1997. “Judicial Review of Agency Actions in a Period of Diminishing Agency Resources.” Administrative Law Review 49: 61–94.Google Scholar
Robinson, Glen O. 1991. American Bureaucracy: Public Choice and Public Law. Ann Arbor, MI: University of Michigan Press.Google Scholar
Ryan, Mike H. 1997. Corporate Strategy, Public Policy, and the Fortune 500: How America's Major Corporations Influence Government. Oxford: Basil Blackwell.Google Scholar
Schoenbrod, David. 1993. Power Without Responsibility: How Congress Abuses the People Through Delegation. New Haven: Yale University Press.Google Scholar
Shapiro, Sidney A. 1997. “Substantive Reform, Judicial Review, and Agency Resources: OSHA as a Case Study.” Administrative Law Review 49: 645–658.Google Scholar
Wilks, Stephen R.M. and Wright, Maurice. 1987. “Conclusion: Comparing Government-Industrial Relations: States, Sectors, and Networks.” In Comparative Government-Industry Relations: Western Europe, the United States, and Japan, edited by Wilks, and Wright, . Oxford: Clarendon Press.Google Scholar