I’m honored to participate in this symposium on the legacy of Richard Parker. Richard’s academic reputation is well justified. Unfortunately, I never got to know Richard, but I respected him. After his untimely passing, however, I learned something that I didn’t know before: Richard was a doer — not just a scholar — of administrative law. Here, I would like to celebrate that aspect of his impressive life.
Before joining the academy, Richard spent a good deal of time in government. He was an assistant general counsel in the Office of the U.S. Trade Representative for several years and also worked in the Environmental Protection Agency (including serving as Trade and Environment Policy Coordinator). Even after joining the academy, however, Richard remained active in the doing of administrative law. In particular, he was actively involved in negotiated rulemaking.
Negotiated rulemaking — “a consensus-based process through which an agency develops a proposed rule by using a neutral facilitator and a balanced negotiating committee composed of representatives of all interests that the rule will affect, including the rulemaking agency itself” — doesn’t get as much attention as other forms of rulemaking. Not all reviews, moreover, are positive.* That’s a different issue for another day. The point here, however, is that Richard was personally involved in negotiated rulemaking. For at least three negotiated rulemakings (one for the Department of Energy and two for the Department of Transportation), he was selected as the neutral facilitator. This was not a small undertaking. I found this notable statement in the Federal Register about a negotiated rulemaking involving Nondiscrimination on the Basis of Disability in Air Travel:
On December 7, 2015, the Department published a notice in the Federal Register announcing its intent to consider a Reg-Neg on six issues—(1) inflight entertainment accessibility; (2) supplemental medical oxygen; (3) service animals; (4) accessible lavatories on single-aisle aircraft; (5) seating accommodations; and (6) carrier reporting of disability service requests. DOT also announced that we had hired a neutral convener, Professor Richard Parker, to speak with disability advocacy organizations, airlines, and others about the feasibility of conducting a Reg-Neg on these six issues. Mr. Parker conducted interviews with 46 different stakeholders representing these interests and prepared a convening report to DOT on the feasibility of conducting the negotiated rulemaking under consideration.
That real-world experience gives greater heft to Richard’s scholarship. For example, he included this paragraph in an article:
The special case of “negotiated rulemaking” — currently practiced only in the US, with a variant followed in some EU Member States — offers substantial additional involvement with stakeholders at the pre-analysis and rule-formation stage. In the US version of this process, an outside facilitator is brought in to preside over negotiations involving a balanced group of representative stakeholders — public interest groups, industry, and government regulators — as they analyze data, examine the issues, and try to negotiate the text or main terms of a proposed rule. Although not all agencies have used negotiated rulemaking (it remains optional), numerous US agencies have employed negotiated rulemaking to help develop draft rules to propose for comment. Even if the process does not lead to consensus, experience suggests that a well done collaborative process often improves the agency’s analysis while building support for — or at least minimizing resistance to — the final decision.
Richard W. Parker & Alberto Alemanno, A Comparative Overview of EU and US Legislative and Regulatory Systems: Implications for Domestic Governance & the Transatlantic Trade and Investment Partnership, 22 Colum. J. Eur. L. 61, 82 (2015).
I do not claim that real-world experience is always essential. But it can be valuable — and Richard had it. This is yet another aspect of his legacy that merits emulation. May he rest In peace.
* See, e.g., Julie Moroney, Note, Reviving Negotiated Rulemaking for an Accessible Internet, 119 Mich. L. Rev. 1581, 1602 (2021) (“Scholars disagree as to whether negotiated rulemaking in practice has actually achieved the reductions in time, cost, and litigation it promised. Another point of contention is whether negotiated rulemaking leads to agency capture or the exclusion of certain stakeholders from the process.”).