• Democratizing Rule Development

    Author(s):
    Michael Sant\'Ambrogio, Glen Staszewski
    Date:
    2021
    Group(s):
    MSU Law Faculty Repository
    Item Type:
    Article
    Permanent URL:
    https://doi.org/10.17613/5j0n-zm59
    Abstract:
    Agencies make many of their most important decisions in rulemaking well before the publication of a Notice of Proposed Rulemaking (NPR), when they set their regulatory agendas and develop proposals for public comment. Agencies' needfor information from outside parties and openness to alternative courses of action are also generally at their greatest during these earlier stages of the rulemaking process. Yet regulatory agenda setting and rule development have received virtually no scholarly attention. The literature generally treats what happens before publication of the NPRM as a "black box" and suggests that agenda setting and rule development are primarily influenced by political considerations and pressure from well-organized groups. Other interested stakeholders, including regulatory beneficiaries, smaller regulated entities, state, local, and tribal governments, unaffiliated experts, individuals with situated knowledge of the regulatory issues, and members of the general public, are routinely absent. While there is undoubtedly much truth to this understanding, a recent study we conducted for the Administrative Conference of the United States unearthed significant efforts by numerous federal agencies to engage the public long before the publication of an NPRM. The existing efforts, however, tend to be relatively unstructured, unsystematic, and ad hoc. Moreover, many opportunities for public engagement are voluntary and self-selecting, which do little to overcome the barriers to participation by traditionally absent stakeholders. Rule development thus warrants more systematic focus and attention to ensure that agencies fully engage all relevant stakeholders in each rulemaking in which they have relevant knowledge, experience, or views thereby promoting the democratic aspirations of regulation.
    Metadata:
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    Published as:
    Journal article     Show details
    Pub. Date:
    2021
    Journal:
    Washington University Law Review
    Volume:
    98
    Page Range:
    793 - 856
    Status:
    Published
    Last Updated:
    9 months ago
    License:
    Attribution
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