Julie E. Cohen (Georgetown University Law Center), Nina-Simone Edwards (Georgetown University Law Center), Meg Leta Jones (Georgetown University – Communication, Culture, and Technology Program), & Paul Ohm (Georgetown University Law Center) have posted Mechanisms for Including Publics in Administrative Governance on SSRN. Here is the abstract:
The administrative state is struggling to counter the growing harms of the information economy. As we have documented in previous reports, existing regulatory tools were designed for an earlier era and are ill-suited to confront information-era harms such as algorithmic discrimination or AI-enabled manipulation. This document is part of a broader effort to rethink the role of the administrative state in governing a digital, data-driven economy. It explores methods for generating and mobilizing public participation–a longstanding pillar of administrative governance.
Public participation in administrative processes serves several recognized purposes: it enhances the legitimacy of agency actions, helps guard against regulatory capture, and improves policy outcomes by surfacing a range of expertise and experience. Participation mechanisms are designed, at least in theory, to enable those affected by regulations to influence their development. In practice, however, it is often difficult for members of the public to meaningfully engage with agencies due to procedures that are opaque, outdated, and influenced by entrenched interests. For many, it is unclear whether participation would have any real impact at all.
In this report, we develop a set of principles to guide the redesign of public participation mechanisms. These include: front-loading public engagement so that publics are involved sooner, building public capacity to enable meaningful engagement, building regulatory capacity to generate ongoing, two-way communication between regulators and publics, and reframing expertise as a public good to help facilitate informed contestation of policy priorities.
Next, we propose specific mechanisms to facilitate the creation of information pipelines that are optimized for the timely transmission of two-way flows of high-quality, context-rich information between agencies and publics. Agencies must actively generate community engagement, gather community information, and facilitate structured deliberation and decision-making on issues central to the substance and design of regulatory oversight.
Last, we propose recommendations for institutional redesign to embed participation mechanisms throughout the regulatory lifecycle. Public participation should begin at the agenda setting stage and extend through regulatory monitoring and enforcement of public mandates. Implementing these changes requires both appropriate resource allocation and some reorganization of internal agency processes.
Highlyr recommended.