Public Participation and Transparency in Administrative Law - Three Examples as an Object Lesson
Administrative Law Review, Vol. 61, No. 171, 2009
Lewis & Clark Law School Legal Studies Research Paper No. 2010-1
29 Pages Posted: 10 Nov 2009 Last revised: 4 Jul 2012
Date Written: November 9, 2009
This Article, written for a forum on comparative administrative law, reviews the development of public participation and transparency in American administrative law in general and then examines three specific laws that attempted to increase transparency and public participation - the Federal Advisory Committee Act (FACA), the Government in the Sunshine Act (Sunshine Act), and the Negotiated Rulemaking Act (NRA). These laws, however, are largely viewed as failures, or at least deeply ineffective, in achieving their goals. In examining these laws, this Article attempts to discern why they failed and suggests that the reasons for their failure are not of a nature that can be easily cured by amendment, but rather reflect significant structural impediments to increasing transparency and public participation through such mechanisms. In this way, this Article may provide guidance to EU lawmakers in attempting to craft mechanisms that can effectively facilitate public participation and transparency in EU agency decisionmaking.
Keywords: Administrative law, Advisory Committees, faca, Government in the Sunshine, Negotiated Rulemaking, Regulartory negotiation, Public participation, Transparency
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