Rulemaking

Abstract: Emerging administrative law mechanisms are influencing decision making and rule making in the growing variety of global regulatory structures. These include international organizations, intergovernmental networks, distributed administration, and both hybrid public/private and private transnational regimes. We define Global Administrative Law (GAL) as the principles, procedures, and review mechanisms emerging to govern these bodies’ decision making and rulemaking, largely leaving aside the substantive content of rules and considering GAL’s sources more broadly than classical sources of public international law. We examine these and the doctrinal principles of transparency, participation, reasoned decision-making, review, and substantive standards that have developed. We next consider conceptions of GAL’s normative foundations from pluralist, solidarist, and cosmopolitan approaches to international ordering, and discuss possible biases inherent in GAL. We then consider different institutional design strategies for constructing GAL given the challenges and opportunities presented by shifting from the domestic to the transnational regulatory space. We conclude that the field of Global Administrative Law is an important and distinct emerging phenomenon deserving systematic study and development.

Abstract: We test the proposition that the federal bureaucracy exhibits a “bias toward business” during notice and comment rulemaking. We analyze over 30 bureaucratic rules and almost 1,700 comments over the period of 1994 to 2001. We find that business commenters, but not nonbusiness commenters, hold important influence over the content of final rules. We also demonstrate that as the proportion of business commenters increases, so too does the influence of business interests. These findings contrast with previous empirical studies and generally suggest that notice and comment procedures have not succeeded in “democratizing” the agency policymaking process to the extent sometimes suggested in the normative rulemaking literature.

Abstract: Joel R Reidenberg* I Introduction to Lex Informatica During the middle ages, itinerant merchants traveling across Europe to trade at fairs, markets, and sea ports needed common ground rules to create trust and confidence for robust international trade The differences among local, feudal, royal, and ecclesiastical law provided a significant degree of uncertainty and difficulty for merchants Custom and practices evolved into a distinct body of law known as the "Lex Mercatoria," which was independent of local sovereign rules and assured commercial participants of basic fairness in their relationships1 In the era of network and communications technologies, participants traveling on information infrastructures confront an unstable and uncertain environment of multiple governing laws, changing national rules, and conflicting regulations For the information infrastructure, default ground rules are just as essential for participants in the Information Society as Lex Mercatoria was to merchants hundreds of years ago2 Confusion and conflict over the rules for information flows run counter to an open, robust Information Society Principles governing the treatment of digital information must offer stability and predictability so that participants have enough confidence for their communities to thrive, just as settled trading rules gave confidence and vitality to merchant communities At present, three substantive legal policy areas are in a critical state of flux in the network environment The treatment of content, the treatment of personal information, and the preservation of ownership rights each presents conflicting policies within nations and shows a lack of harmonization across national borders In addition, serious jurisdictional obstacles confront the enforcement of any substantive legal rights in the network environment3 But just as clear accounting rules reassured participants in twentieth century financial markets, ground rules for the access, distribution, and use of information will shape the trust, confidence, and fairness in the twenty-first century digital world for citizens, businesses, and governments Historically, law and government regulation have established default rules for information policy, including constitutional rules on freedom of expression and statutory rights of ownership of information4 This Article will show that for network environments and the Information Society, however, law and government regulation are not the only source of rulemaking Technological capabilities and system design choices impose rules on participants5 The creation and implementation of information policy are embedded in network designs and standards as well as in system configurations Even user preferences and technical choices create overarching, local default rules6 This Article argues, in essence, that the set of rules for information flows imposed by technology and communication networks form a "Lex Informatica" that policymakers must understand, consciously recognize, and encourage7 The Article begins in Part II with a sketch of the information policy problems inherent in the legal regulation of content, personal information, and intellectual property on global networks Part II proceeds to show specific technical solutions and responses to these policy problems as an illustration of the rule-making power of technology and networks These illustrations serve as a prelude to the articulation of a theory of Lex Informatica Part III then defines the theoretical foundation for Lex Informatica by showing technological constraints as a distinct source of rules for information flows Lex Informatica intrinsically links rule-making capabilities well suited for the Information Society with substantive information policy choices Lex Informatica may establish a single, immutable norm for information flows on the network or may enable the customization and automation of information flow policies for specific circumstances that adopt a rule of flexibility …

Abstract: What would our decision-making procedures look like if they were actually guided by the much-discussed concept of "deliberative democracy"? What does rule by the people for the people entail? And how can a modern government's reliance on administrative agencies be reconciled with this populist ideal? What form must democratic reasoning take in the modern administrative state? Democratic Autonomy squarely faces these challenges to the deliberative democratic ideal. It identifies processes of reasoning that avert bureaucratic domination and bring diverse people into political agreement. To bridge our differences intelligently, Richardson argues, we cannot rely on instrumentalist approaches to policy reasoning, such as cost-benefit analysis. Instead, citizens must arrive at reasonable compromises through fair, truth-oriented processes of deliberation. Using examples from programs as diverse as disability benefits and environmental regulation, he shows how the administrative policy-making necessary to carrying out most legislation can be part of our deciding what to do. Opposing both those liberal theorists who have attacked the populist ideal and those neo-republican theorists who have given up on it, Richardson builds an account of popular rule that is sensitive to the challenges to public deliberation that arise from relying on liberal constitutional guarantees, representative institutions, majority rule, and administrative rulemaking. Written in a non- technical style and engaged with practical issues of everyday politics, this highly original and rigorous restatement of what democracy entails is essential reading for political theorists, philosophers, public choice theorists, constitutional and administrative lawyers, and policy analysts.