Cornell e-Rulemaking Initiative Publications

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Working Papers

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A companion piece to Rulemaking vs. Democracy: Judging and Nudging Public Participation that Counts, this Essay continues to examine the nature and value of broader public participation in rulemaking. Here, we argue that rulemaking is a “community of practice,” with distinctive forms of argumentation and methods of reasoning that both reflect and embody craft knowledge. Rulemaking newcomers are outside this community of practice: Even when they are reasonably informed about the legal and policy aspects of the agency’s proposal, their participation differs in kind and form from that of sophisticated commenters. From observing the actual behavior of rulemaking newcomers in the Regulation Room project, we suggest that new public participation is often, if not predominantly, experiential in nature and narrative in form. We argue that it is unrealistic to expect that rulemaking newcomers can be significantly inculcated into the norms and methods of the existing rulemaking community of practice. Yet, the potential policymaking value of the on-the-ground, situated knowledge they can bring to the discussion justifies efforts to expand our understanding of the kinds of comments that should “count” in the process. We take some first steps in that direction in this Essay.


Forthcoming in: Wake Forest Law Review, vol. 47 (2012).