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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).

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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
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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.
- ---
- ---

FIGURES
2.1 The pyramidal organization of the OSHA bar page 32
3.1 Source of comment letters for twenty-five rules
completed 1990–7 60
3.2 Length of OSHA final rule documents in the
Federal Register,moving five-year medians and
means, 1972–2002 84
TABLES
2.1 Percentage of surveyed attorneys’ practices devoted
to OSHA work 33
2.2 Areas of specialization, all respondents 36
2.3 Distribution of attorneys’ time within their OSHA
practices 37
2.4 Fora engaged in by OSHA attorneys in past five years 39
2.5 Leading geographic concentrations for OSHA-related
lawyers 42
2.6 Firm sizes and specialization 43
2.7 Demographics – OSHA bar and comparison groups 46
2.8 Political party affiliation of OSHA practitioners 48
2.9 Leading law schools of OSHA practitioners 49
2.10 Law school ranking of OSHA practitioners 50
2.11 Government experience of OSHA practitioners 51
xii
LIST OF FIGURES AND TABLES
3.1 Advocacy of company rulemaking participation 62
3.2 Forms of attorney participation in OSHA rulemaking 66
4.1 Leading objectives in OSHA rulemaking suits 98
4.2 Chronology of major events in OSHA’s lockout/tagout
rulemaking 113
5.1 Total OSHA inspections, citations, and penalties

727 F.2d 415 (5th Cir. 1984) 252n.27
Asbestos Information Association v. Reich,
117 F.3d 891 (5th Cir. 1997) 109–10
Associated Industries of NY State v. Department
of Labor, 487 F.2d 342 (2d Cir. 1973) 82,253n.39
Color Pigments Manufacturers Association v. OSHA,
16 F.3d 1157 (11th Cir. 1994) 77,252n.27
Cuyahoga Valley Railway v. United Transportation
Union, 474 U.S. 3 (1985) 264n.29
Dole v. United Steelworkers of America, 494 U.S.
26 (1990) 261n.85
Dry Color Manufacturers Association v. Department
of Labor, 486 F.2d 98 (3d Cir. 1973) 82,253n.39
Edison Electric Institute v. OSHA, 849 F.2d 611
(D.C. Cir. 1988) 257n.38
Fire Equipment Manufacturers Association v. Marshall,
679 F.2d 679 (7th Cir. 1982) 255n.7
xiv
TABLE OF CASES
Hern Iron Works, Inc. v. Donovan, 670 F.2d 838
(9th Cir. 1982) 145,264n.35
Industrial Union Department, AFL-CIO v.
American Petroleum Institute,
448 U.S. 607 (1980) 76,123,251n.25
International Union, UAW v. OSHA, 938
F.2d1310(D.C.Cir1991)121–2, 258n.52
International Union, UAW v. OSHA, 976 F.2d 749
(D.C. Cir. 1992) 123
International Union, UAW v. OSHA, 37 F.3d 665
(D.C. Cir. 1994) 123–4,252n.26

without David Yalof’s direction, professional and otherwise. The sup-
port of many institutions and the people in them deserves mention:
the Department of Political Science at Johns Hopkins University; the
Centre for Socio-Legal Studies and Nuffield College at the Univer-
sity of Oxford; and the Department of Political Science at Southern
Methodist University have all provided comfortable homes, supportive
environments, and generous support for my work. Finola O’Sullivan,
Jane O’Regan, Brenda Burke, and Diane Ilott at Cambridge Univer-
sity Press were supportive and tireless through the whole process. The
anonymous reviewers and series editors offered excellent direction. I
have long ago lost track of the names of librarians here, there, and
everywhere who went the extra step. Numerous colleagues and friends
have also given direct support to some aspect of this project. With
my apologies to those inadvertently left off, I would like to recognize:
Pamela Winston, Margie Brassil, Doug Dow, Doreen McBarnet, Simon
Halliday, Denis Galligan, Philip Lewis, Alec Stone Sweet, Liz Fisher,
Paul Martin, Bronwen Morgan, Joe Kobylka, and Dennis Simon.
Others have provided indirect support, which has been no less mean-
ingful and always deeply appreciated. I am confident that Eric Doherty
xvi
ACKNOWLEDGMENTS
has provided direct support at some point in the past, but if he didn’t
he certainly leads the class in this latter category.
The lawyers and other organizational representatives whose anony-
mous voices are heard in this book graciously welcomed me into their
offices. Time is money, and thankfully I have yet to see a single bill for
the many hours of time – collectively valued in the tens of thousands
of dollars – that was given to this research.
Words can acknowledge but never sufficiently capture my fam-
ily’s contribution. When deadlines required it, my sister, Liz Jennings,

API American Petroleum Institute
CMA Chemical Manufacturers Association (now American
Chemistry Council)
DOL Department of Labor
EEI Edison Electric Institute
EPA Environmental Protection Agency
ETS Emergency Temporary Standard
FCC Federal Communications Commission
FY Fiscal Year
IBEW International Brotherhood of Electrical Workers
GAO Government Accountability Office (formerly General
Accounting Office)
LIA Lead Industries Association
MSHA Mine Safety and Health Administration
NAM National Association of Manufacturers
NAPA National Asphalt Pavement Association
NESC National Electrical Safety Code
NIOSH National Institute for Occupational Safety and Health
xviii
LIST OF ABBREVIATIONS
NLRB National Labor Relations Board
NPRM Notice of Proposed Rulemaking
OCAW Oil, Chemical, and Atomic Workers
OMB Office of Management and Budget
OSHA Occupational Safety and Health Administration
OSHRC Occupational Safety and Health Review Commission
PEL Permissible Exposure Limit
PRMA Paint Remover Manufacturers Association
SOL Solicitor of Labor
UAW United Auto Workers

tools with which political systems have found mechanisms, both of
1
LAWYERS AND REGULATION
convenience and of necessity, for the propagation and implementa-
tion of rules. Like the portrait of regulatory lawyers, the contemporary
administrative state rests on foundations in tension, between 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 both the importance and potential
problems of discretion. While administrative policymaking often sup-
plements or even supplants legislative decisionmaking, a democratic
“deficit” results from weaker mechanisms of accountability in prac-
tice. As faith in the expertise of administrators waned in the twentieth
century, the emphasis on processes sometimes stood in as one solution
to this deficit. In the United States, in particular, the drive to procedu-
ralize the administrative state only generated new concerns about the
effects of legalization and judicialization in a system with interest rep-
resentation at its heart.
Because of the particular foundations, evolution, and culture in the
American context, lawyers are basic ingredients in the contemporary
regulatory soup as representatives of private interests. Given concerns
about the influence of private power on public administration, a general
accounting of how bureaucracy translates legislative goals into con-
crete results simply cannot ignore what lawyers provide as intermedi-
aries. Still, despite substantial attention to the process of governance

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 atti-
tudes of attorneys practicing before the US Occupational Safety and
Health Administration (OSHA). Established in 1970 and charged with
improving and maintaining the safety and health of workplaces in the
United States, OSHA’s history contains all the hopes, controversies,
successes, and failures one could ever wish on a regulatory bureau-
cracy. As a leading example of a “social regulatory” agency created
in a wave during the 1960s and 1970s, its organization contains the
two distinct processes – administrative rulemaking and enforcement –
that are often considered separately but less commonly are considered
together. Though different agencies, even different processes within an
agency, might be seen as unique occasions for legal work, the shared
endeavor across the OSHA policy process applies beyond the US as
well: how should the state, both produced by and interacting with the
private sphere, transform abstract policy goals 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 behav-
ior 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 result-
ing politics and policy, but viewed from a distance, rulemaking and
enforcement unite in the common goal of putting flesh on skeletal pol-
icy and giving life to law, though they remain important guideposts to
where lawyers may become involved. This frame of reference begins
to highlight the complex setting for a regulatory bar, defined simply as
3