'Data, Views, or Arguments': A Rumination

Michael Herz

Cardozo School of Law - Yeshiva University


William & Mary Bill of Rights, Vol. 22, No. 2, 2013
Cardozo Legal Studies Research Paper No. 418

The Administrative Procedure Act requires an opportunity for public comment as part of the rulemaking process. One undertheorized question is what exactly the purpose of such comments is. What sort of input, from whom, is desirable? This question has become more salient in recent years as new technologies have opened up greater opportunity for broad lay participation in what has historically been largely an insiders’ game.

“Notice and comment” is a shorthand that diverges from the statutory text. The APA does require “notice,” but it does not provide for “comment.” Rather, in words that seem carefully chosen, it provides that “the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.” This Article unpacks those last three nouns -- “data, views, arguments” -- in discussing what it is exactly that commenters, especially lay commenters, have to contribute to rulemaking.

Number of Pages in PDF File: 31

Keywords: rulemaking, 553, notice and comment, public comment, regulations.gov, regs.gov, e-rulemaking, electronic rulemaking, Administrative Procedure Act, honeybees

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Date posted: January 12, 2014 ; Last revised: December 2, 2014

Suggested Citation

Herz, Michael, 'Data, Views, or Arguments': A Rumination (2013). William & Mary Bill of Rights, Vol. 22, No. 2, 2013; Cardozo Legal Studies Research Paper No. 418. Available at SSRN: http://ssrn.com/abstract=2377394

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Michael Eric Herz (Contact Author)
Cardozo School of Law - Yeshiva University ( email )
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New York, NY 10003
United States
212-790-0373 (Phone)
HOME PAGE: http://www.cardozo.yu.edu/MemberContentDisplay.aspx?ccmd=ContentDisplay&ucmd=UserDisplay&userid=1051

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