Document Type
Article
Publication Date
2021
Abstract
Most legally binding administrative rules emerge from the notice-and-comment process, which explicitly requires the agency to consider input from the general public. However, by the time the opportunity for public input occurs, the agency is already substantially locked into its chosen approach and cannot act on new information in the comments. This is true even though its chosen approach was decided upon with input from only those the agency routinely deals with. This process entrenches already established interests and prevents those without existing agency connections from meaningfully contributing earlier in the process.
This problem could be solved by holding public discussions online before the publication of the proposed rule and therefore before the agency is locked in. Employing modem Internet guidelines would ensure that all those who wish to participate can, while preventing bad actors from disrupting the purpose and atmosphere of the discussion. This approach would combine the benefits of current alternative agency practices while avoiding the drawbacks that frequently prevent their use. Agencies that are expected to work on behalf of the public should likewise have an effective method to accept input from that same public before becoming locked into a choice of action.
Recommended Citation
73 Admin. L. Rev. 255 (2021).