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Created: March 25, 2002
Latest Update: March 25, 2002
The "Public Interest" in Bargaining
Copyright: Jeanne Curran and Susan R. Takata and Individaul Authors, March 2002.
"Fair use" encouraged.This essay is based on a Duke Law Journal article: Bargaining in the Shadow of Administrative Procedure: The Public Interest in Rulemaking Settlement By Jim Rossi. Cited: 51 Duke L. J. 1015. December 2001. Executive Privilege and the Bush Administration.
Look particularly at III. B. Ex Ante Hard Look Review of the Merits of Settlements, at p. 1050, and "Voice and loyalty interests, in particular, may be in tension at times, but this is the same tension with which courts struggle elsewhere in defining participation for administrative law." fn. 148 on p.1058.
Note that public discourse, particularly discourse concerning the issues of "voice and loyalty interests," is complex. Town meetings don't work well in many nooks and crannies of such large governance infrastructures as we have, particularly because of the kind of concerns that Rossi expresses in this article. And all of this reflects the on-going debate between privatization and public control.
This is a long article, and I know that many undergraduates will not have the time to read it in detail. But do take a look at the Introduction. Notice particularly the opportunities for administrative policy to be created outside the normal procedural protections, and notice especially how such opportunities occur in presidential transitions.
I'll try to get discussion topics up soon. jeanne March 25, 2002.