'Data, Views, or Arguments': A Rumination

31 Pages Posted: 12 Jan 2014 Last revised: 9 Feb 2015

See all articles by Michael Herz

Michael Herz

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: 2013


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.

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

Suggested Citation

Herz, Michael Eric, '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: https://ssrn.com/abstract=2377394

Michael Eric Herz (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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646-592-6444 (Phone)

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