97 Pages Posted: 23 Jun 2016 Last revised: 13 Jan 2017
Date Written: June 21, 2016
Federal rulemaking has traditionally been understood as a text-bound, technocratic process. However, as this Article is the first to uncover, rulemaking stakeholders — including agencies, the President and members of the public — are now deploying politically tinged visuals to push their agendas at every stage of high-stakes, often virulently controversial, rulemakings. Rarely do these visual contributions appear in the official rulemaking record, which remains defined by dense text, lengthy cost-benefit analyses, and expert reports. Perhaps as a result, scholars have overlooked the phenomenon we identify here: the emergence of a visual rulemaking universe that is splashing images, GIFs, and videos across social media channels. While this new universe, which we call “visual rulemaking,” might appear to be wholly distinct from the textual rulemaking universe on which administrative law has long focused, the two are not in fact distinct. Visual politics are seeping into the technocracy.
This Article argues that visual rulemaking is a good thing. It furthers fundamental regulatory values, including transparency and political accountability. It may also facilitate participation by more diverse stakeholders — not merely regulatory insiders who are well-equipped to navigate dense text. Yet we recognize that visual rulemaking poses risks. Visual appeals may undermine the expert-driven foundation of the regulatory state, and some uses may threaten or outright violate key legal doctrines, including the Administrative Procedure Act and longstanding prohibitions on agency lobbying and propaganda. Nonetheless, we conclude that administrative law theory and doctrine ultimately can and should welcome this robust new visual rulemaking culture.
Keywords: multimedia, visual media, video, social media, neuroscience, cognitive psychology, brain, administrative law, lobbying, government information, advocacy, regulation
Suggested Citation: Suggested Citation
Porter, Elizabeth G. and Watts, Kathryn A., Visual Rulemaking (June 21, 2016). New York University Law Review, Vol. 91, No. 5, Pp. 1183-1278 (2016); University of Washington School of Law Research Paper No. 2016-16. Available at SSRN: https://ssrn.com/abstract=2799334