Foreword: Rulemaking, Democracy, and Torrents of E-Mail
Nina A. Mendelson
University of Michigan Law School
June 8, 2011
George Washington Law Review, Vol. 79, p. 101, 2011
U of Michigan Public Law Working Paper No. 240
Agency notice-and-comment rulemaking has been widely claimed to strengthen public participation and the democratic nature of governmental decision making. These claims have intensified as agencies have gained greater discretion over economic and health, safety, and environmental rules, as websites and e-mail have facilitated increasingly high levels of public comment, and as commentators have criticized the adequacy of presidential and congressional oversight of agencies. Some attention has been given to the extent of public participation, but we should also consider what agencies do and ought to do with the often enormous numbers of public comments they receive. This Foreword represents an initial foray into that issue. Agencies typically focus only on the technical comments, largely dismissing public policy and values-focused comments, even when they arrive in large numbers. Because values issues are typically relevant to an agency’s implementation of its broad statutory responsibilities, however, the article makes a preliminary case that more thorough consideration of value-laden public comment could potentially enhance both the quality and democratic legitimacy of agency decision making. At the very least, it is time for more systematic evaluation of how agencies treat the comments they get.
Number of Pages in PDF File: 28Accepted Paper Series
Date posted: June 11, 2011 ; Last revised: July 9, 2011
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