Evaluating E-Rulemaking: Public Participation and Political Institutions

Abstract

Proponents of electronic rulemaking proposals designed to enhance ordinary citizens' involvement in the rulemaking process have debated with skeptics the question of whether such initiatives will actually increase citizens' involvement. In the debate thus far, however, proponents have largely assumed the desirability of such involvement, and skeptics have usually not challenged that assumption. In addition, proponents and skeptics have focused on the relationship between agencies and individuals, failing to consider the larger administrative law context - and in particular the role played by Congress and the courts. This Article considers e-rulemaking in a broader institutional context and directly addresses the desirability of the proposed e-rulemaking initiatives. The Article finds that there are good reasons to believe that e-rulemaking initiatives' costs outweigh their benefits, but that it would be premature to settle on that conclusion. The Article ultimately advocates modest experimentation with e-rulemaking, both to allow for further evaluation of e-rulemaking and to provide additional data about the rulemaking process more generally.

Keywords: Erulemaking, Comments, Agencies, Experimentation, Administrative Procedure Act, Public, Participation