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NEGOTIATED RULEMAKING AND THE PUBLIC INTEREST
I.
Introduction
Professor Jody Freeman has written that, “administrative law scholarship needs to
broaden its view and lower its gaze.”1 She means that certain conceptions about
administrative law held by twentieth century scholars—including the assumption that
administrative agencies operate solely in the “public interest”—long ago ran into an
epistemological wall, and that a reluctance to examine these assumptions is impeding
efforts to address evident problems in the functioning of these agencies. This essay looks
at the case of negotiated rulemaking—or reg-neg, as it is known2—and argues that the
often-used term “public interest,” proves to be a cipher in most critiques of
In this essay I proceed by first examining developments in administrative law
theory that acknowledge the contribution of private actors in the functioning of
administrative agencies. Next, reg-neg is analyzed as a response to these theoretical
concerns, and as a pragmatic accommodation to the reality of modern administrative
functioning. After reviewing the writings of administrative law scholars who have
criticized reg-neg on the grounds that it is counter to the “public interest,” I discuss the
point made by many that the concept of the “public interest” appears to lack substance
and proves quite difficult to define. I then look at the discourse regarding “public
1
Jody Freeman, The Private Role in Public Governance, 75 N.Y.U. L. Rev. 543, 673 (2000).
For a description of this term and its genesis, see Philip J. Harter, Assessing the Assessors: The Actual
Performance of Negotiated Rulemaking, 9 N.Y.U. Envtl. L. J. 32, 33 n.1 (2000). According to Professor
Harter, negotiated rulemaking is “a process by which representatives of the interests that would be
substantially affected by a proposed [administrative] rule, including the agency responsible for issuing the
rule, negotiate in good faith to reach a consensus on a proposed rule.” Id. at 33. Reg-neg, he claims, has
“proven enormously successful in developing agreements in highly polarized situations.” Id. at 32.
2
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interest” in other legal and policy contexts to see what light, if any, these debates might
bring to thinking about this problem in the context of reg-neg. Finally, I make some
general observation and suggestions concerning the concept of “public interest” in the
debate over reg-neg.
II.
Late 20th Century Developments in Administrative Law
Until recently, there has been only scant recognition among administrative law
theorists of the role of private interests in the day-to-day affairs of administrative
agencies.3 Even now, most scholars maintain a view in which the modern agency is seen
to be largely insulated from partisan influence,4 and their focus remains on methods of
restraining administrative discretion so as to keep the agency neatly within the bounds of
legislative authority, upon which goal the agency’s political legitimacy is thought to
depend.5 Thus, according to Professor Freeman, the “view that private actors exacerbate
the traditional legitimacy crisis in administrative law—that they are menacing outsiders
whose influence threatens to derail legitimate ‘public’ pursuits—features prominently in
the dominant models of the field.”6 She challenges this view, however, and argues for
3
See Freeman, supra note 1, at 546 n.8 (collecting early articles looking at the role or influence of private
interests in administrative affairs).
4
But cf. Philip J. Harter, Negotiating Regulations: A Cure for Malaise, 71 Geo. L.J. 1, 16 (1982) (“The
agency virtually always retains a broad range of discretion, the exercise of which involves inherently
political choices.”).
5
See Freeman, supra note 1 at 546 (“Unsurprisingly, administrative law scholarship has organized itself
largely around the need to defend the administrative state against accusations of illegitimacy, principally by
emphasizing mechanisms that render agencies indirectly accountable to the electorate, such as legislative
and executive oversight and judicial review.”). See also Richard B. Stewart, The Reformation of American
Administrative Law, 88 Harv. L. Rev. 1669, 1675 (1975) (“The traditional model of administrative law thus
conceives of the agency as the mere transmission belt for implementing legislative directives in particular
cases. It legitimates intrusions into private liberties by agency officials not subject to electoral control by
ensuring that such intrusions are commanded by a legitimate source of authority.”).
6
See Freeman, supra note 1, at 548-49. Freeman may have had in mind, when choosing the term
“menacing,” William Funk’s rather dramatic conclusion that, even in the face of wide acceptance by
Congress and governmental regulators in the preceding fifteen years, “negotiated rulemaking remains a
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the existence of “a deep interdependence among public and private actors in
accomplishing the business of governance,” a web of relationship that “shatters the
notion of ‘public’ power that animates the legitimacy crisis in administrative law.”7
Almost 30 years ago, on the eve of this country’s bicentennial celebration,
Richard Stewart asserted that “American administrative law is undergoing a fundamental
transformation that calls into question its appropriate role in our legal system.”8 In an era
of “seemingly inexorable expansion” of regulatory authority into the private sphere, he
noted, there were critics who questioned whether the protections of liberty and property
interests found in the administrative law of that time were adequate, and whether the
administrative state had grown so unwieldy as be incapable of carrying out its assumed
mission of fostering and protecting the “public interest.”9 But even as these critics
accused agencies of “subverting” the public interest, Professor Stewart observed a
countervailing skepticism which had arisen—not so much among administrative law
scholars as among political scientists, judges, legislatures, and legal commentators
outside of the field—concerning the “very existence” of an overarching common
welfare.10
Stewart argued that the courts, in response to the growing and changing nature of
agencies, had shifted in their view of agency actions from a traditional conception of
wolf in sheep’s clothing.” William Funk, Bargaining Toward the New Millennium: Regulatory
Negotiation and the Subversion of the Public Interest, 46 Duke L. J. 1351, 1388 (1997).
7
Id. at 547.
8
Stewart, supra note 5, at 1669.
9
Id. at 1681-83.
10
Id. at 1682-83 (Professor Stewart wrote:
To the extent that belief in an objective ‘public interest’ remains, the agencies are
accused of subverting it in favor of the private interests of regulated and client firms.
Such a ‘devil’ theory at least holds out the possibility of redemption. However, we have
come not only to question the agencies’ ability to protect the ‘public interest,’ but to
doubt the very existence of an ascertainable ‘national welfare’ as a meaningful guide to
administrative decision.)
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administrative law towards what he called an “interest representation model.”11
According to Stewart:
Implicit in this development is the assumption that there is no
ascertainable, transcendent “public interest,” but only the distinct interests
of various individuals and groups in society. Under this assumption,
legislation represents no more than compromise struck between competing
interests groups. This analysis suggests that if agencies were to function
as a forum for all interests affected by agency decisionmaking, bargaining
leading to compromises generally acceptable to all might result, thus
replicating the process of legislation. Agency decisions made after
adequate consideration of all affected interests would have, in microcosm,
legitimacy based on the same principle as legislation and therefore the fact
that statutes cannot control agency discretion would become largely
irrelevant.12
If one accepts this analysis, Stewart argued, the problem of administrative
law is to provide effective representation for all interests affected by the
administrative action, and it becomes necessary to “devise a process, distinct from
either traditional political or judicial models, that both reconciles the competing
private interests at stake and justifies the ultimately coercive exercise of
governmental authority.”13
Stewart, in the end, could not offer such a process. He could only
conclude that judicial efforts to address the necessity of full representation of
private interests in the administrative process were unlikely to overcome the
problem of legitimacy created by broad legislative delegations and the growth of
the administrative state, and that political solutions addressing the problem were
likewise not feasible nor desirable.14 Thus, having described a central problem of
11
Id. at 1722.
Id. at 1712.
13
Id. at 1760.
14
Id. at 1802
12
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administrative theory in a new and provocative manner, he left to others the task
of building a new model of the administrative action.
III.
The Rise of Negotiated Regulation
One early response to the challenge described by Professor Stewart was suggested
by Philip Harter. First in a report to the Administrative Conference of the United States,
and then in his seminal article, Negotiating Regulations: A Cure for Malaise, Professor
Harter outlined a process—reg-neg—that would bring interested parties on all sides of an
issue into direct negotiations with an agency in order to achieve consensus on a proposed
draft rule.15 Thereafter, the draft would then be submitted to the standard rulemaking
procedures, after gaining the endorsement of the all substantially affected interests.
Harter’s analysis of the problem—which he referred to as the “malaise” affecting
agency rulemaking16—was that the pronounced adversarialism that marked the modern
rulemaking process led, in the context of difficult or inherently political issues, to
inefficiencies (especially in terms of delay), to a reliance on power rather than persuasion
in the decisionmaking process, to unimaginative and poorly crafted rules, and, ultimately,
15
See Harter, supra note 4.
Having argued that agency rulemaking is inherently political—at least in those situations where the ends
sought were not clearly visible and uncontroversial—Harter described the problem he was confronting as
follows:
The resolution of these political questions has resulted in a crisis of legitimacy that is the
current malaise. Agency actions no longer gain acceptance from the presumed expertise
of its staff. It is no longer viewed as legitimate simply because it fills in the gaps left by
Congress, or because it is guided by widely accepted public philosophy. To the extent
that rulemaking has political legitimacy, it derives from the right of affected interests to
present facts and arguments to an agency under procedures designed to ensure the
rationality of the agency's decision. Although this process confines and narrows agency
discretion, it does not provide a forum suitable for the resolution of the political questions
or for the exercise of subtle value choices.
Id. at 17 (citations omitted).
16
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to a rejection of the result and/or the process and a consequent de-legitimizing of the
agency decision among the regulated interests and other affected persons.17
Taking seriously the suggestion of Professor Stewart and others, that the
dynamics of administrative regulation could be helpfully viewed using a contract
metaphor, Harter proposed a process that explicitly conceived of rulemaking as
bargaining between the various affected interests, including the agency, the legislature,
and members of the general public.18 Simply put, the idea of reg-neg was to unmask the
reality behind the formalism of the modern rulemaking process, and it offered the quite
reasonable and theoretically-justified19 suggestion that cooperative or principled
bargaining, rather than adversarial posturing, legalism, and litigation, might lead to a
better rule and would be accepted as just and fair by those who would have to live with
the result.
The notion that important administrative policy-making could be conducted in a
collaborative but principled framework found wide acceptance—particularly, and most
importantly, among elected representatives and leaders of the executive branch and the
agencies themselves. A few academic critics, while acknowledging reg-neg’s popularity,
17
Id. at 19-22.
Professor Stewart has, more recently, described this concept in terms of a process where:
[A]gencies are active, often dominant partners in the process, and the result is a quasicontractual working relationship among the participants to solve regulatory problems on
a coordinated basis. Rather than centralized mass production, this method embraces a
post-industrial strategy for producing regulation. Its watchwords are flexibility,
innovation, benchmarking, transparency of performance measures, and mutual learning
by doing.
Richard B. Stewart, Administrative Law in the Twenty-First Century, 78 N.Y.U. L. Rev. 437 (2003). See
also, Freeman, supra note 1, at 549 (“As a metaphor for how governance works, moreover, contract
captures the idea that all of the participants in a particular context—governmental agencies together with a
vide variety of nongovernmental actors—negotiated over policy and its implementation. Contract therefore
offers a valuable heuristic, a way for us to reimagine the nature of what we now call governance.”).
19
See, e.g., ROGER FISHER, WILLIAM URY, AND BRUCE PATTON, GETTING TO YES: NEGOTIATING
AGREEMENTS WITHOUT GIVING IN (2d ed. 1991). But c.f. Funk, supra note 6, at 1378-79 (arguing that
cooperative and principled bargaining hamstrings the agency, and “perverts the role of the agency as
sovereign.”).
18
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seem to regard it as a disturbing fad.20 As I explain next, they see theoretical flaws in the
process, and have questioned the existence of the benefits claimed by reg-neg’s
supporters.21 However, many of these concerns appear redolent of the old hostility
towards “private” interests prevalent among administrative law scholars concerned
mostly with defending the existence of such agencies, and grounded in the view of the
agency as a neutral “expert” operating above the political fray.22 Specifically, I focus on
the troubling claim made by some critics that reg-neg represents nothing less than the
“subversion of the public interest.”23
See, e.g., Funk, supra note 6, at 1387 (referring to the “infatuation” with reg-neg). See also Cary
Coglianese, Is Consensus an Appropriate Basis for Regulatory Policy?, at 2, available at
http://ksgnotes1.harvard.edu/Research/wpaper.nsf/rwp/RWP01-012/$File/rwp01_012_coglianese.pdf
(hereinafter Coglianese, Is Consensus an Appropriate Basis) (referring to the “craving for consensus,” and
the “prevailing enchantment” with collaborative processes), republished in ENVIRONMENTAL CONTRACTS:
COMPARATIVE APPROACHES TO REGULATORY INNOVATION IN THE UNITED STATES AND EUROPE 93-113
(Eric Orts & Kurt Deketelaere eds., 2001).
21
See, e.g., Cary Coglianese, Assessing Consensus: The Promise and Performance of Negotiated
Rulemaking, 46 Duke L. J. 1255 (1997) (reporting results of an empirical study finding that reg-neg does
not reduce overall rulemaking time nor decrease the number of judicial challenges to agency rules)
(hereinafter Coglianese, Assessing Consensus). Coglianese’s conclusions drew a response from Professor
Harter, a mathematician as well as a lawyer, who argued that the study was ”significantly flawed” on
several counts. See Harter, supra note 2. This response, in turn, drew a rebuttal from Coglianese, who
accused Harter of failing in his reply “to meet ordinary, neutral standards for empirical social science.” See
Cary Coglianese, Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip Harter, 9
N.Y.U. Envtl. L. J. 386. 445 (2001). This last complaint calls to mind Professor Postman’s trenchant
observation about social science and social scientists:
I believe it is important to distinguish science from non-science…. There are three
reasons why. First, it is always worthwhile to insist that people explain the words they
have chosen to describe what they are doing, so that their purposes may be evaluated.
Second, many people who use the word “science” do so in the hope that its prestige will
attach to their work. Americans are peculiarly afflicted with science-adoration, which is
why we must endure such abominations as the oxymorons Christian Science, Creation
Science, Scientology, Policy Science, Decision Science, and Administrative Science, as
well as Behavioral and Social Science. And third, when the study of human conduct is
classified as science, there is a tendency to limit the kinds of inquiries that may be made:
counters and “empiricists”—that is, pseudo-scientists—are apt to deprive others of the
right to proceed in alternative ways, for example, by denying them tenure. The result is,
of course, that they impoverish all of us and make it more difficult for people with ideas
to be heard.
See NEIL POSTMAN, CONSCIENTIOUS OBJECTIONS 9-10 (1988).
22
See supra notes 6-7, and accompanying text. See also Funk, supra note 6 at 1380 (arguing for a
normative standard “of an agency acting consequentially, not politically, in an exercise of instrumental
rationality.”).
23
See, e.g., Funk, supra note 6 (making this claim in the title of the article).
20
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IV.
Critiquing Negotiated Regulation: The Problem of Defining and Locating
the Public Interest
[T]the most difficult words in any form of discourse are rarely the
polysyllabic ones that are hard to spell and which send students to their
dictionaries. The troublesome words are those whose meanings appear to
be simple, like “true,” “false,” “fact,” “law,” “good,” and “bad.”24
Critics of reg-neg have asserted that allowing individuals or other private interests
substantially affected by agency actions the opportunity to negotiate face-to-face with the
agency and with representatives of all other interests, about the substance of a proposed
administrative rule, is inherently contrary to the “public interest.” The underlying theme
of this critique is the questionable notion that such negotiations take away ultimate
control of the decisionmaking authority from the agency, and that they presume the
agency is uniquely endowed with the ability to discern what is best for all.
As to the first argument concerning agency control of the decision, these
criticisms frequently overlook or ignore that the agency retains the ultimate authority to
issue a rule, and is not compelled to propose a rule with which it does not ultimately
concur. This is true even though the agency assumes an obligation to negotiate in good
faith to achieve a consensus on the draft rule, and ordinarily agrees to support the rule
achieved through such consensus. An important premise of reg-neg, of course, is that the
agency has voluntarily and for strategic reasons chosen to sponsor the negotiation
process. This does not, however, logically require or even suggest that the agency
abdicate its responsibility to fulfill its legislative mandate and legal obligations.25
24
POSTMAN, supra note 21, at 27.
See, e.g., Philip J. Harter, In Search of Goldilocks: Democracy, Participation, and Government, 10 Penn
St. Envtl. L. Rev. 113, 129 (2002) (“A deliberative process that involves representatives of the private
25
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Most criticism of reg-neg, however, hinges on the second argument: that
administrative agencies are uniquely able to discern the public interest. Professor Funk,
for example, embraces the notion of the agency as rational expert, seeking the one true
answer that best reflects the needs of the nation. He states that: “Underlying the APA
and all other statutes directing or authorizing agencies to adopt regulations is the notion
that the agency will be acting in the public interest.”26 While this is undoubtedly true, he
frankly admits that “[w]hat is meant by the public interest is not always clear.” Funk
then demonstrates (perhaps unintentionally) the truth of his own observation, in offering
his own definition of the public interest: “I mean it to be the best interests of the nation,
the people, the body politic.”27 Funk’s definition does little more than substitute one
word (best) for another (public). This “troublesome”28 word—best—begs the question,
however, and Funk’s circular argument seems to comes down the assertion that the
agency must avoid collaboration and make the decision alone, because…well, because
that’s what the theory says.
Similarly, Michael McCloskey echoes this concern about moving towards explicit
collaboration in the production of administrative regulations.29 McCloskey focuses his
concern on the use of consensus as a rule of decision in such negotiations, calling this a
“prescription for frustrating the national will of the majority.”30 McCloskey argues that:
[T]he consensus rule serves to overthrow the basic suppositions of
representative democracy. Instead of the direction of public policy being
set by those garnering the greatest support among the electorate, those
sector does indeed mean that the agency cannot unilaterally impose its will on the private sector, at least
during the deliberations themselves.”) (emphasis added).
26
Funk, supra note 6, at 1382.
27
Id. at 1383.
28
See supra text accompanying note 24.
29
See Michael McCloskey, Problems with Using Collaboration to Shape Environmental Public Policy, 34
Val. U. L. Rev. 423 (2000).
30
Id. at 432.
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directions would be set by collaborations in which those with little support
can thwart the will of the majority. This turns democracy on its head.
Ironically, the consensus rule allows minorities to veto progress along
certain lines.31
This seems an odd claim coming from the (then) Chairman of the Sierra Club, a
group that has devoted itself—admirably in my opinion32—to challenging the
correctness of decisions made by these very administrative agencies. In any case,
this analysis quickly breaks down.
For one thing, the government officials and employees who would
otherwise formulate the rules are not themselves elected. Second, even if one
accepts with McCloskey the proposition that the “will of the majority” can be
equated with “progress,” the failure in reg-neg to reach consensus does not
“thwart” or “veto” anything, except the ability of the negotiating committee to
determine the contents of a proposed rule. In cases where no consensus is
reached, the agency is free to proceed and propose its own rule—and may do so
with the added benefit of whatever useful information was gained from the
“failed” negotiations. Thus, even assuming as McCloskey does that the agency is
the rightful repository of the public interest, nothing is lost by the failure to reach
consensus.33 Finally, his assertion that public policy is normatively “set” by the
majority of the electorate is simply disingenuous. As the head of arguably the
nation’s most prominent environmental group, he is intimate with the nature of
interest group politics in Washington and elsewhere, and he understands the
31
Id. at 430.
I will admit to some bias in this matter, as I served as an intern during law school with what was then
known as the Sierra Club Legal Defense Fund, an independent non-profit law firm that, however, was
responsible for prosecuting the majority of such challenges on behalf of the Sierra Club.
33
Indeed, from McCloskey’s perspective, the failure to reach consensus would be a victory, as any
subsequent rulemaking effort would revert to the traditional forms.
32
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nuances and complexity of our representative democracy and how that differs
from notions of direct democracy.
McCloskey is understandably troubled by the increased influence of local
communities in the administrative process affecting forest and timber regulations, which
seems to be the animating concern behind his critique.34 However, McCloskey’s broad
assertion that collaboration and sharing of decisionmaking authority in the formulation of
administrative rules is fundamentally undemocratic and contrary to the public interest is
based on little more than a questionable faith that the agency can and will effectuate the
public interest.35
Finally, Cary Coglianese is perhaps the most persistent critic of reg-neg.36 Like,
McCloskey, Professor Coglianese also focuses his attention on the perceived dangers of
consensus as a decision rule in negotiated rulemaking. And while most of his efforts are
aimed at disproving the claims of reg-neg advocates concerning the benefits of the
process,37 Coglianese goes further and asserts that reg-neg represents a “retreat from the
public interest as the primary goal of government officials.”38 That conclusion, however,
does not easily follow from the claimed failure of reg-neg to achieve certain efficiencies,
nor is it directly substantiated by empirical evidence. At most, it might be said that reg34
If one believes with Garrett Hardin that mankind is doomed to overexploit common resources, See
Donald Kennedy, Sustainability and the Commons, Science , December 12, 2003, at 1861, 1861 (citing
Garrett Hardin, Tragedy of the Commons, Science, vol. 162, no. 1243 (1968)), than increased local control
of decisions about such resources arguably presents a troubling development. In fairness to McCloskey, his
critique appears aimed at a slightly broader set of collaborative arrangements and is not limited to reg-neg,
but his failure to make any distinction between such processes detracts from the force of his argument.
35
Faith, of course, has its limits, and one presumes that the Sierra Club reserves its right to sue an agency
when it thinks the agency lacks understanding about what the public interest requires. If so, it is worth
questioning whether the Sierra Club, when engaging in negotiations directly with the agency to settle such
litigation, is acting consistent with the public interest and the values of representative democracy that
McCloskey defends.
36
See Coglianese, Is Consensus an Appropriate Basis, supra note 20; Coglianese, Assessing Consensus,
supra note 21.
37
See supra note 21.
38
See Coglianese, Is Consensus an Appropriate Basis, supra note 20, at 32.
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neg represents (for its advocates) a new approach to achieving the same desired result—
i.e., the best decision for the public.
So what are we to make of the complaint that reg-neg “subverts” the “public
interest”? Certainly, we may say that a criticism is incompetent when it depends entirely
on terms which have no ascertainable meaning, or for which the critic can supply none.39
Such criticism is unhelpful, moreover, as it does nothing to further a serious debate about
serious issues. Can we, then, just dismiss these claims, tossing them in the junk pile of
criticism?
I think not. Critics such as Coglianese are, of course, correct that we must look at
the underlying theory and assumptions around reg-neg and attempt to assess—
empirically and otherwise—how it is performing. The question of whether reg-neg is
serving the public interest is an important one, even if it has, until now, been used mostly
to vent the hostile suspicions of a fading tradition. General linguistic and philosophical
objections regarding the use of the term “public interest,” moreover, are themselves
somewhat too broad and subject to the criticism that they, too, fail to move the debate
forward. What then?
Professor Freeman argues that, while “[t]here is no purely private realm and no
purely public one,” these dichotomous notions nonetheless are “meaningful signifiers…
helpful ways of referring to areas of life that we experience as more or less under our
See, e.g., Freeman, supra note 1, at 558 (“Although frequently employed, the concept of the “public
interest” evades rigorous definition in administrative law.”). Professor Freeman speculates that the use of
this term may denote a view among scholars that “administrators are bound to implement statutes with a
view to effecting their underlying purpose (assuming that statutes generally evince such a purpose)” or,
alternately, a concern that administrators should “take a longer view—that they should consider
noneconomic values, or protect diffuse unorganized interests lacking a voice in the political or
administrative process.” Id. at 558 n.52.
39
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control, more or less coercive, more or less alienating.”40 Perhaps the public interest—
like the related concept of legitimacy—is a “usefully vague…administrative law theory,
serving as a vessel into which scholars could pour their most pressing concerns about
administrative power.”41 If we understand the public interest in this pragmatic sense,
then it seems the task is to provide some suggested content(s) for it, so that it may be
employed helpfully and with appropriate nuance to explore the difficult questions about
reg-neg. Freeman suggests that the focus for this exploration should not be on agencies,
qua agencies, but rather on the pervasive interdependence that characterizes
administrative functioning, its inputs and outputs, and which may be viewed as a “set of
negotiated relationships.”42 Where do we look for such content?
Analogy is a time-honored method in the law for supplying new content, as it is in
literature—a fact that seems appropriate to note in passing, since the present analysis has,
arguably, moved into a realm where there is discernable overlap in these traditions.
Accordingly, it may be appropriate to look beyond administrative law to see if debates
about the “public interest” in other fields could provide helpful guidance.
V.
Other Debates About the Public Interest: Legal Ethics and Professionalism
Administrative law and reg-neg are not the only realms in which disagreements
occur over what is in the public interest, and whether there is such a thing. For example,
it is commonly accepted that lawyers representing governmental entities are imbued with
a responsibility to act in and protect the public interest, a responsibility that is not shared
40
Id. at 550-51.
Id. at 557.
42
Id. at 564.
41
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by attorneys representing private interests.43 Some critics of this notion respond that
“government attorneys cannot work to pursue the public interest because the very concept
of a ‘public interest’ is unintelligible and cannot provide a workable guidepost for
government attorneys with regard to the choices and decisions that they must make in
their professional capacities.”44
One response to the resulting conceptual divide, offered by Steven Berenson, is to
characterize “public” and “private” in terms of the characteristic values commonly
implied by the use of those terms.45 Thus, “’private’ values encompass ideas such as
individual choice, autonomy, and pursuit of economic self-interest,” and “public” values
encompass “ideas such as connection to others, community, collective action, group
interaction, and discourse.”46 Berenson also suggests that private might be understood as
“self-regarding” and public as “other-regarding.”47 Such distinctions seem to fall into a
category we might call “procedural” or “instrumental” values, and it is not hard to see
why they do not provide Berenson with easy answers to the question of whether and how
a government attorney can act in the public interest.48
43
Steven K. Berenson, Public Lawyers, Private Values: Can, Should, and Will Government Lawyers Serve
the Public Interest?, 41 B.C. L. Rev. 789, 790 (2000).
44
Id. at 790, 803-04.
45
Id. at 791.
46
Id.
47
Id. at 811-12.
48
In my own career as an attorney representing government entities, I know that a persistent and difficult
question in my practice was “Who is the client?” Was it the agency as a whole, was it the legislative body
of the agency (when there was one), was it the majority of the legislative body who made decisions, was it
the professional administrators, or was it the public at-large? As a private attorney representing public
entities on a contract basis, a majority of the legislative body not only determined policy but also had the
responsibility, effectively, to oversee my performance and the power to fire me. This nuance added another
twist to ethical questions I faced as a government attorney, and differentiated to some extent my situation
from that of full-time agency attorneys—staff attorneys, generally, are not directly under the control of the
legislative or policy-making body. In any case, these were not idle speculations; rather, they had important
ethical implications regardless of whether the context was litigation, providing opinions and advice, or
drafting agreements.
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Berenson’s categories could suggest for reg-neg a communitarian perspective, in
which the question of whether a proposed rule was in the public interest is measured by
the impact it would have on individual and collective relationships in affected
communities, and between communities.49 Factors such as the expected impact of a
proposal for the physical and mental health of a community, along with the expected
impacts on the economy, would seem difficult to exclude from such an analysis.
In another example, Professor Rhode notes that similar questions arise in the
debate over whether lawyers—being members of a profession—have an obligation to
some set of transcendent values associated with the profession and aligned with the
public interest.50 After acknowledging the arguments against the use of the term “public
interest,”51 she offers her view that: “Defining the common good will often be complex
and contested, but that is no reason to avoid either the effort or the concept.”52 One may
accept that there may, ultimately, be no objective “right” answers about issues involving
morals or values, she continues, but that does not prevent us from concluding that
“[s]ome positions are more coherent, free of bias or self-interest, and supported by
reliable evidence.”53 She also cites Political theorist Richard Flathman for the suggestion
that the term public interest “can appropriately apply to policies whose effect on the
49
I use communitarianism to mean, here, an emphasis on and valuing of the interests of a community—
and the web of relationships that comprise a community—where these conflict or compete with individual
rights and interests, though not to an excess that threatens accepted notions of individual liberty. See, e.g,
Robert M. Ackerman, Disputing Together: Conflict Resolution and the Search for Community, 18 Ohio St.
J. on Disp. Resol. 27, 29 n.7 (2002) (describing in a footnote and in the accompanying text the basic
concerns of communitarianism). See also, Deborah L. Rhode, The Profession and the Public Interest, 54
Stan. L. Rev. 1501, 1514 n.71 (2002) (book review) (collecting books and articles on both communitarian
as well as liberal views that assuming the existence of an identifiable public interest).
50
Rhode, supra note 49, at 1514-17.
51
Id. at 1514.
52
Id. at 1515.
53
Id. at 1517.
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general welfare has been fully justified.”54 Although not easy to apply in any definitive
sense, this standard suggests that an element of thorough, principled, and open
investigation of public impacts should underlie any conclusion that a particular action is
consistent with the public interest.
VI.
Conclusion: Arguing for the Public Interest in the context of Negotiated
Regulations
I say arguing “for” the public interest—rather than “about” it—for the reason that,
as with the “environment,” nobody is (publicly) against the public interest. That is
precisely the problem raised in this paper: everybody—with the exception perhaps of
those who, even provisionally, are unwilling to admit to its existence—agrees that the
public interest ought to be served by administrative rulemaking. The problem is that
people, including scholars, frequently neglect to make clear what they mean by that term,
and this is particularly apt to be the case when they wish to define what they believe it is
not.55
I agree with Professors Rhode, Berenson, Freeman and even Professor Funk, that
we ought to continue in our various discourses the debate over the “public interest,” as
difficult as it may be to define, as a means of testing and asserting various goals and
values representing something more than a single self-interested viewpoint, and that we
believe to be especially salutary. Primarily, this is due to my faith that the many
questions raised thereby will more than justify the difficulty we will surely encounter in
convincing others of the correctness of our views. But I also think it is highly incumbent
upon those who do so to make an honest and serious effort to provide a definition of the
54
Id.
Or, as Professor Rhode states it, the term public interest is usually “appropriated for political purposes to
legitimate whatever policy prescriptions the speaker advocates.” Id. at 1514.
55
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public interest, and that will likely mean an explicitly provisional and contextualized
definition.
Perhaps such a definition will be procedural and instrumental in nature, and the
standard used to assess whether a negotiated rulemaking is consistent with the public
interest will look to whether all interested parties have been provided the opportunity to
effectively participate in the negotiations.56 Perhaps a standard containing more
substantive values, such as those drawn from communitarian analysis, would allow a
determination along broader lines than available by looking only at an aggregation of
disparate individual impacts. At this juncture, I can offer no more than these initial
speculations on the content of any standard for assessing the public interest in the context
of reg-neg. My purpose here has been mostly to point out the need for doing so. I
suspect, moreover, that the need for a definition—even if only provisional in nature—will
continue to arise in the context of the specific products of this newer form of participative
democracy, and that this context will be helpful in moving the debate forward.
56
See, e.g., Philip J. Harter, A Plumber Responds to the Philosophers: A Comment on Professor MenkelMeadow’s Essay on Deliberative Democracy, 5 Nev. L. J. 379, 385 (2005) (stating that there is a need in
negotiated rulemaking to “endure that all perspectives and concerns are considered,” and arguing that in
order for reg-neg to “meet its goal of reconciling competing values and insights into a ‘public interest’—a
vision shared by the populace and not just by the bureaucracy—it must also be democratic and hence
broadly representative.”).
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