Originally from:

Journal of American Arbitration (JAA) - Vol. 5, No. 1

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ARTICLES

Negotiated Rulemaking and the Public Interest
By Jeff Goldfien

I. INTRODUCTION
Professor Jody Freeman has written that “administrative law
scholarship needs to broaden its view and lower its gaze.”1 She means
that the predominate view of twentieth century administrative law
scholars long ago ran into an epistemological wall and is impeding
efforts to address evident problems in the functioning of these agencies.
That traditional outlook—and, in particular, the assumption that agencies
operate solely in the “public interest”—has bogged down the scholarship
around the recent innovation of negotiated rulemaking. This essay
focuses on how this conceptual logjam arose, and offers an initial
suggestion for moving the debate forward. It first examines
developments in administrative law theory that acknowledge the
contribution of private actors to the inputs and outputs of administrative
agencies and at how negotiated rulemaking (or reg-neg, as it is
commonly known2) has evolved as a real world manifestation of these
insights. It proceeds next to the writings of critics who contend that regneg
is counter to the public interest before turning to the point made by
other that this concept—the public interest—appears to lack substance
and proves quite difficult to define. Seeking a path forward from this
dilemma, the analysis briefly turns to other legal and policy contexts
where this problem arises to see what light, if any, they may bring to
thinking about the subject. Finally, the essay concludes with some
general observations and suggestions meant to move along the debate
over reg-neg.