Two Track E-Commenting

9 Pages Posted: 30 Jul 2021

See all articles by Daniel Rauch

Daniel Rauch

University of Maryland Francis King Carey School of Law

Date Written: February 1, 2016


Since the passage of the Administrative Procedure Act (APA), administrative agencies have been permitted—and sometimes required—to engage in “notice-and-comment rulemaking” when promulgating regulations. In its present form, “notice and comment” requires agencies to give public notice of proposed regulations, allow citizens to comment on such proposals, and respond to the concerns offered in such comments (even if agencies do not ultimately act on the concerns).

In recent years, the notice-and-comment process has gone digital. Via the interface, citizens can view the text of proposed rules, comment on each proposed regulation, view the online comments of others, and, in theory, have their concerns read and addressed by agencies.

Waxing eloquent, some claim that e-rulemaking might fundamentally transform the participatory process. For now, however, the process is defined by a more pedestrian phenomenon: spam. In typical e-rulemakings, agencies receive thousands of comments that are short, identical statements of support or opposition to a proposal.

Given this deluge, some deride the current system as “notice and spam” rulemaking, treating identical posts as wasteful annoyances. By contrast, some might see the posting of such messages as simply another way to “participate directly in the rulemaking process” —expression at the core of the APA’s purposes.

This Comment suggests a novel, middle course: a “two-track” e-comment system that would distinguish substantive, unique messages on one hand and bare expressions of preference on the other. This bifurcation, in turn, would yield significant benefits for the notice-and-comment process.

Keywords: APA, administrative law, rulemaking, e-rulemaking, electronic rulemaking, e-government, notice and comment

Suggested Citation

Rauch, Daniel, Two Track E-Commenting (February 1, 2016). Comment, Two Track E-Commenting, 33 Yale Journal on Regulation 303, Available at SSRN: or

Daniel Rauch (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201

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