E-rulemaking
Information Renaissance
Information and communication technology opens the opportunity for hearings or juries deliberating on regulatory rulemaking online. Web sites, bulletin boards and email would be valuable in bringing together people of diverse experience and perspectives – if desired, chosen at random – to contribute to the kind of deliberation on rulemaking that in the past has been largely restricted by fiscal and logistic impediments. The technology can facilitate the participation of interested parties that may be otherwise especially difficult to engage, for geographic, cultural, or other reasons.
E-docket rooms already exist in many U.S. departments and agencies. Such rooms are web sites that list proposed new rules, often provide access to the studies that support the changes, provide means for the public to comment and the means for members of the public to read each others comments, and reply to those interventions. At their most elaborate, they create a public dialogue on the merits and details of specific regulation. Many who promote such e-docket rooms envision them as ultimately providing detailed analysis of, and point-by-point response of the regulator to, categorical summarizations of public comment, creating conditions of genuine input accountability: providing the decisional transparency that allows the public to see how its contributions to the discussion have been used. Some imagine a second phase, allowing the public to further respond to decisions, clarifying points or rebutting unanticipated arguments against their positions. Such mechanisms would allow such e-docket rooms to become media for genuine public dialogue.
Examples:
Department of Transportation
http://dms.dot.gov/help/about_dms.cfm
Environmental Protection Agency
http://www.epa.gov/epahome/dockets.htm
Readings:
Cary Coglianese, “The Internet and public participation in rulemaking,” Regulatory Policy Program Working Paper RPP-2003-05. Cambridge, MA: Center for Business and Government, John F. Kennedy School of Government, Harvard University, 2003.
Cary Coglianese, “E-rulemaking: Information, technology and regulatory policy,” Regulatory Policy Program Report No. RPP-05 (2004). Cambridge, MA: Center for Business and Government, John F. Kennedy School of Government, Harvard University, 2004.
Brandon, Barbara H., and Robert D. Carlitz, "Online rulemaking and other tools strengthening our civil infrastructure," Administrative Law Review, 54(4) fall 2002, 1421-1478
The authors examine how the Internet could fundamentally change the way that the public participates in policymaking, within the context of the existing civic infrastructure. They argue for the building of a transparent online environment that encourages public input, and that such a project should include innovations in electronic docket rooms and online policy dialogues.
Cuéllar, Mariano-Florentino , "Rethinking regulatory democracy," Administrative Law Review , 57(2) Spring 2005, 411-500
The author considers the prospect for a democratization of rulemaking on the bases of three case studies and the public role in providing formal commentary. His study leads him to several important conclusions: the level of comment suggests a desire of the public to be involved; while there is a great range of specialized and technical sophistication in public comment, lay people nearly always raise concerns relevant to the agencies legal mandate and some do so with the complex argumentation that regulators look for; agencies do respond with amendments on the basis of notice and comment, though the sophistication of the response affects the likelihood of its impact; interest groups don’t always raise the concerns expressed by the broader public; and the public’s interest, and capacity for sophisticated response is shaped by the form of the consulting process. He concludes therefore that changes in the notice and comment process can enhance the democratization of rulemaking.
Coglianese, Cary , et al. "Unifying rulemaking information: Recommendations for the new federal docket management system," Administrative Law Review, 57(2) Spring 2005
The authors explain recommendations in a widely circulated and endorsed letter that they wrote to the Bush Administration in regards to the latter’s efforts to create the Federal Docket Management System (FDMS), which would for the first time make all information supporting federal regulation available to the public via the Internet. The authors argue that, if developed along the lines that they recommend, FDMS can also facilitate legal and social scientific research, which in the long term would improve regulatory policymaking.
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