Last updated: April 1, 2007
This Bibliography is a work-in-progress. We welcome suggestions for additional entries, especially if accompanied by a brief annotation. Contact us!
Michael Herz, Rulemaking, in Developments in Administrative Law and Regulatory Practice, 2002-2003 (Jeffrey S. Lubbers ed., 2004) 145–51.
Brief but thorough introduction to e-rulemaking from the passage of the E-Government Act to 2003. Identifies many of the challenges faced in the implementation process, particularly with regulations.gov, and discusses how e-rulemaking makes agencies more politically responsive.
Stuart Minor Benjamin, Evaluating E-Rulemaking: Public Participation and Political Institutions, 55 Duke L. J. 893 (2006).
Reviews proposals to increase public participation through e-rulemaking, and evaluates the likelihood of increased participation and the potential costs. Considers the potential increase in congressional and judicial rejection of agency rules as a result of increased participation leading to either politically undesirable results or insufficient consideration of substantive comments. Suggests that there is a lack of empirical evidence and that therefore the push for a complete switch to e-rulemaking should be halted in favor of more narrow experimentation at the individual agency level.
Barbara H. Brandon & Robert D. Carlitz, Online Rulemaking and Other Tools for Strengthening Our Civil Infrastructure, 54 Admin. L. Rev. 1421 (2002).
Describes best practices and primary areas for improvement in e-rulemaking and related procedures. Authors believe that electronic docketing has the potential to foster more informed dialogue and on some level the article is more about deliberative government that e-rulemaking per se. Provides a good introduction for those unfamiliar with information management challenges as they relate to increased participation in e-rulemaking (as compared to traditional notice-and-comment rulemaking).
Cary Coglianese, Citizen Participation in Rulemaking: Past, Present, and Future, 55 Duke L.J. 943 (2006)
Considers past efforts to increase citizen participation in rulemaking and current empirical research on the impact of e-rulemaking. Concludes that e-rulemaking will not have a significant impact on citizen participation.
Carry Coglianese et al., Unifying Rulemaking Information: Recommendations for the New Federal Docket Management System, 57 Admin. L. Rev. 621 (2005).
Copy of November 2004 letter to OMB with recommendations on design of Federal Document Management System, with background information. The key principles behind the recommendations (which the OMB has expressed a general commitment to implement) are (1) consistency in data; (2) flexibility of search; and (3) ease of downloading.
John M. de Figueiredo, E-Rulemaking: Bringing Data to Theory at the Federal Communications Commission, 55 Duke L. J. 969 (2006).
Examines trends from 1999 to 2004 in electronic filings with Federal Communications Commission and concludes that public participation has not significantly improved during that period. Notes that only 1% of rulemakings generate substantial individual participation, that at least some of these cases involve organized interests and do not truly represent individual preferences, and that most individual comments express preferences but no actionable suggestions on implementation.
Stephen M. Johnson, The Internet Changes Everything: Revolutionizing Public Participation and Access to Government Information Through the Internet, 50 Admin. L. Rev. 277 (1998).
Discusses the role of the internet in providing citizens with increased access to government information. This article places significant emphasis on agency decision-making other than notice-and-comment rulemaking and how electronic publication of informal adjudications, interpretative rules, and policy statements can make agencies more accountable.
Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 Minn. L. Rev. 342 (2004)
Situates e-rulemaking within an approach to regulation that the author calls the “Renew Deal” governance paradigm.
Beth Simone Noveck, The Electronic Revolution in Rulemaking, 53 Emory L.J. 433 (2004)
Argues that the relative lack of citizen participation in agency rulemaking is due to the government's failure to create a framework that encourages participation and deliberation. Suggests that the advent of e-rulemaking creates the opportunity for a shift towards more participative procedures but that thus far e-rulemaking has failed to do so because the procedures are being designed in secret without public consultation.
Alice Robbin et al., ICTs and Political Life, 38 Ann. Rev. Info. Sci. & Tech. 410 (2002)
Overview of political theories of democracy and civil society and of social shaping of technology, followed by a review of empirical evidence on e-government.
David Schlosberg & John S. Dryzek, Digital Democracy: Authentic or Virtual?, 15 Organ. & Env't 332 (2002).
Arguing that digital democracy is largely inauthentic, but suggesting solutions including finding a means for groups (as opposed to individuals) to participate and creating open dockets and other systems for encouraging debate.
Stuart W. Shulman, E-Rulemaking: Issues in Current Research and Practice, 28 Int'l J. Pub. Admin. 621 (2005).
Discusses Regulations.gov in the context of scholarship on public participation in agency rulemaking. Issues 7 and 8 of volume 28 of journal include many articles on e-government.
Peter Strauss, The ABA Ad Law Section's E Rulemaking Survey, 29 Admin. & Reg. L. News 8 (Spring 2004), available at http://www.abanet.org/adminlaw/news/adlaw_spring2004.pdf
Includes a “wish-list for agency electronic dockets in Rulemakings.”
Sylvia Tesh, The Internet and the Grass Roots, 15 Org. & Env't 336 (2002).
Argues that increased use of the internet by the government, particularly at the expense of traditional methods of seeking feedback such as public hearings, could result in the demise of grassroots movements.
Thomas C. Beierle, Discussing the Rules: Electronic Rulemaking and Democratic Deliberation (Resources for the Future, Discussion Paper No. 03-22, 2003)
An optimistic view on the potential of e-rulemaking, stressing the importance of moving beyond online docketing to true online dialogues.
Thomas C.Beierle, Democracy On-line: An Evaluation of the National Dialogue on Public Involvement in EPA Decisions (2002)
Study of one early attempt at e-rulemaking by the EPA known as the National Dialogue on Public Involvement in EPA Decisions, finding that the dialogue increased public participation but suffered from many challenges including overcoming the digital divide, the overwhelming volume of messages, and claims that messages critical of EPA were downplayed. Makes several recommendations to Congress and the executive for improving e-rulemaking in the future.
Cary Coglianese, E-Rulemaking: Information Technology and Regulatory Policy, New Directions in Digital Government Research (2004)
Report on two workshops on e-rulemaking sponsored by the Regulatory Policy Program at the John F. Kennedy School of Government (Harvard) and National Science Foundation's Digital Government Research Program. Proposes a research agenda of twenty-five questions in four areas: (1) information technology, (2) agency management of rulemaking, (3) public involvement in the rulemaking process, and (4) regulatory compliance.
Cary Coglianese, The Internet and Public Participation in Rulemaking (Regulatory Pol'y Program, Working Paper RPP-2003-05, 2003)
Brief overview of some of the forms that e-rulemaking can take. Suggests that implementation should be preceded by careful consideration of whether increased participation will fulfill relevant policy goals.
JoAnne Holman, Strength in Numbers? Public Participation in the Media Ownership Proceedings at the Federal Communication Commission (Aug. 3, 2005) (unpublished manuscript)
Study of one FCC rulemaking that generated high levels of individual participation that nevertheless resulted in the FCC adopting a rule that the majority of commenters did not support. Highlights some of the problems presented by mass participation, including the rulemaker's inability to adequately address all comments.
Elena Larsen & Lee Raine, The Rise of the E-Citizen: How People Use Government Agencies' Web Sites (Pew Internet & American Life Project 2002)
General information about increased use of government websites.
Engaging Citizens Online for Better Policy-Making, OECD Policy Brief (Org. for Econ. Cooperation & Dev., Wash., D.C.), Mar. 2003
Based on survey and study of OECD member countries, suggests guiding principles for online consultation, and identifies key challenges for online citizen engagement in policymaking.
eRulemaking at the Crossroads (Stuart Shulman ed., May 4, 2006)
Collection of nine white papers prepared for the 7th Annual International Conference on Digital Government Research in San Diego, California, May 24, 2006. Topics covered include the Federal Docket Management System, mass participation, and interface and system design.
U.S. General Accounting Office, Electronic Rulemaking: Efforts to Facilitate Public Participation Can Be Improved (Sept. 17, 2003)
Government study identifying many of the challenges to successful implementation of e-rulemaking, including usability issues with Regulations.gov and simultaneous use by agencies of Regulations.gov and their own agency websites, often with different background information and mechanisms for participation on each.
