This Article traces the trajectory of negotiated rulemaking within American administrative law. The popularity of negotiated rulemaking - among scholars, politicians, and regulators - has waxed and waned since its start in the 1980s. This Article describes and assesses these shifts, charting the birth of negotiated rulemaking, its incorporation into the APA, and its infrequent use in recent years. In mapping the rise and fall of negotiated rulemaking, we focus on two particular critiques - that it violates normative commitments to (...) expertise and rationality in bureaucratic decision making, and that it fails to deliver on its promises of faster rulemaking and less litigation. This Article contends that the first critique is overblown and that the second is true in some instances but not in others. We argue that negotiated rulemaking is most valuable when the appropriate negotiating parties can be easily identified, when they are likely to make concessions and build rapport with each other, and when traditional methods of rulemaking have become ossified. (shrink)

This paper uses diversity management as a placeholder for human rights policy. By diversity management, I mean those policy techniques that a society can use to deal with diversity, which include not only decisions to make diversity a subject of active legal and governmental intervention, but also decisions to leave diversity to informal, unregulated choices by individuals or civil society institutions. My discussion proceeds with particular reference to the United States, in part because it has been relatively successful in managing (...) its diversity in recent decades—relative, that is, both to its own past and to the record of other countries today. An approach to diversity management “works,” in my view, if and to the extent that the country’s vulnerable minorities enjoy some social mobility, are integrated into the major institutions of society, have access to political influence roughly proportional to their limited numbers, are free to live according to their own group values and practices, and do not feel deep alienation from the dominant cultural norms. By this definition, the American system works relatively well—with the qualifications and exceptions noted just above. The paper proceeds in three parts. Part I seeks to sharpen our understanding of diversity by analyzing several different ways of understanding and defining that idea, with a view to underscoring the significance of choosing one or another measure of it. Part II discusses two examples— multiracial individuals and anti-profiling laws—to illustrate the inevitable politicization of certain demographic categories when used for politicallysensitive purposes. Part III presents some distinctive and, in some cases, unique features of the American approach to diversity management. Most of these features, I argue, effectively advance the cause of minority mobility and integration, whereas some tend to undermine these goals. (shrink)