Lawyers in Agencies: Economics, Social Psychology, and Process

Abstract

Underlying the discussion of the role of the government lawyer that follows lies the premise that lawyers within agencies are fundamentally different than other regulators. A particular regulatory process-and indeed the administrative state in general-would look quite different if we decided to exclude lawyers from the process. Moreover, our explicit or implicit decision about the contours of the role played by lawyers in the administrative state has important implications for our understanding of basic issues, such as the value of science and the value of advocacy. Similarly, excluding other specialists, such as economists or industry experts, also would produce interesting and important changes in the outcomes generated by the administrative state. To put the matter more precisely, there is no question that lawyers' involvement in the administrative process has both costs and benefits. The purpose of this essay is to explain the nature of these costs and benefits. The first section of the essay draws on insights from social psychology, providing an explanation for why lawyers' perspectives on regulatory issues differ dramatically from those of their non-regulatory colleagues. The second part describes some of the benefits from adding lawyers and lawyers' perspectives to the regulatory mix. In the third part of the article I discuss the costs that lawyer involvement imposes on a regulatory system.