The next generation of administrative law: Building the legal infrastructure for collaborative governance

Wisconsin Law Review

Volumn 2010, Issue 2, 2010, Pages 297-356

  Bingham, Lisa Blomgren ^a  

^a INDIANA UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 78650841142     PISSN: 0043650X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (510)

1. Transparency and Open Government: Memorandum for the Heads of Executive Departments and Agencies, 74 Fed. Reg. 4685 (Jan. 26, 2009).
2. For a review of the current theories and literature on governance, see Scott Burris et al., Changes in Governance: A Cross-Disciplinary Review of Current Scholarship, 41 AKRON L. REV. 1 (2008).
3. Lisa Blomgren Bingham, Collaborative Governance: Emerging Practices and the Incomplete Legal Framework for Citizen and Stakeholder Voice, 2009 J. DISP. RESOL. 269 (2009) (describing the spectrum of collaborative governance processes and arguing they represent a single related phenomenon of non-adversarial voice that operates across the policy continuum, including legislative, executive, and judicial functions).
4. Collaborative governance occurs between and among national governments and these categories of participants, but transnational applications are outside the scope of this Article. For more on transnational applications, see, e.g., Gráinne de Búrca, Developing Democracy Beyond the State, 46 COLUM. J. TRANSNAT'L L. 221 (2008);
5. David M. Trubek & Louise G. Trubek, Hard and Soft Law in the Construction of Social Europe: The Role of the Open Method of Co-Ordination, 11 EUR. L.J. 343 (2005);
6. David M. Trubek & Louise G. Trubek, New Governance & Legal Regulation: Complementarity, Rivalry, and Transformation, 13 COLUM. J. EUR. L. 539 (2007);
7. Charles F. Sabel & Jonathan Zeitlin, Learning from Difference: The New Architecture of Experimentalist Governance in the European Union (European Governance Papers, No. C-07-02, 2007), available at http://www.connex-network. org/eurogov/pdf/egp-connex-C-07-02.pdf.
8. The scope of this Article is limited to the policy process in the executive branch of the United States government. The term "collaborative governance" applies equally to any level of government, including local, regional, and state. Hence, these definitions could be reframed for different jurisdictions.
9. A recent review of empirical literature on collaborative governance defines stakeholders to include both individual participants and organizations or agencies. See Chris Ansell & Alison Gash, Collaborative Governance in Theory and Practice, 18 J. PUB. ADMIN. RES. & THEORY 543 (2007) (finding that face-to-face dialogue, trust-building, and the development of commitment and shared understanding are crucial factors for collaboration, and that small wins deepen trust, commitment, and shared understanding).
10. For diverse practice resources, see Institute for Local Government, Collaborative Governance Initiative (Public Engagement), http://www.ca-ilg.org/ cgi (last visited Mar. 4, 2010).
11. The seminal works in public affairs are THE TOOLS OF GOVERNMENT: A GUIDE TO THE NEW GOVERNANCE (Lester M. Salamon ed., 2002), and Lester M. Salamon, The New Governance and the Tools of Public Action: An Introduction, 28 FORDHAM URB. L.J. 1611 (2001);
12. see also Daniel J. Fiorino, Rethinking Environmental Regulation: Perspectives on Law and Governance, 23 HARV. ENVTL. L. REV. 441 (1999).
13. A number of legal scholars have recently examined the new governance, which includes collaborative governance, in a variety of contexts. See, e.g., Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L. REV. 1 (1997);
14. Bradley C. Karkkainen, Reply, "New Governance" in Legal Thought and in the World: Some Splitting as Antidote to Overzealous Lumping, 89 MINN. L. REV. 471 (2004);
15. Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 MINN. L. REV. 342 (2004);
16. Orly Lobel, Surreply, Setting the Agenda for New Governance Research, 89 MINN. L. REV. 498 (2004);
17. Richard Stewart, Administrative Law in the Twenty-First Century, 78 N.Y.U. L. REV. 437 (2003);
18. David L. Markell, The Role of Spotlighting Procedures in Promoting Citizen Participation, Transparency, and Accountability, WAKE FOREST L. REV. (forthcoming 2010), available at http://ssrn.com/abstract=1553125;
19. Louise G. Trubek, New Governance and Soft Law in Health Care Reform, 3 IND. HEALTH L. REV. 139 (2006) [hereinafter Trubek, New Governance];
20. Louise G. Trubek, Public Interest Lawyers and New Governance: Advocating for Healthcare, 2002 WIS. L. REV. 575 [hereinafter Trubek, Lawyering].
21. Howard Erlanger et al., Foreword, Is it Time for a New Legal Realism?, 2005 WIS. L. REV. 335, 357;
22. Joanne Scott & David M. Trubek, Mind the Gap: Law and New Approaches to Governance in the European Union, 8 EUR. L.J. 1 (2002);
23. Louise G. Trubek & Maya Das, Achieving Equality: Healthcare Governance in Transition, 29 AM. J.L. & MED. 395 (2003).
24. See, e.g., Lisa T. Alexander, Stakeholder Participation in New Governance: Lessons From Chicago's Public Housing Reform Experiment, 16 GEO. J. POVERTY L. & POL'Y 117 (2009);
25. Wendy A. Bach, Governance, Accountability, and the New Poverty Agenda, 2010 WIS. L. REV. 239;
26. Amy J. Cohen, Governance Legalism: Hayek and Sabel on Reason and Rules, Organization and Law, 2010 WIS. L. REV. 357;
27. Mark Dawson, Transforming into What? New Governance in the EU and the "Managerial Sensibility" in Modern Law, 2010 WIS. L. REV. 389;
28. Cristie L. Ford, New Governance, Compliance, and Principles-Based Securities Regulation, 45 AM. BUS. L.J. 1 (2008);
29. Cristie Ford, New Governance in the Teeth of Human Frailty: Lessons from Financial Regulation, 2010 WIS. L. REV. 441;
30. Nan D. Hunter, Risk Governance and Deliberative Democracy in Health Care, 97 GEO. L.J. 1 (2008);
31. Poul F. Kjaer, The Metamorphosis of the Functional Synthesis: A Continental European Perspective on Governance, Law, and the Political in the Transnational Space, 2010 WIS. L. REV. 489;
32. Edward Rubin, The Regulatizing Process and the Boundaries of New Public Governance, 2010 WIS. L. REV. 535;
33. Jason M. Solomon, New Governance, Preemptive Self-Regulation, and the Blurring of Boundaries in Regulatory Theory and Practice, 2010 WIS. L. REV. 591;
34. Stephanie Tai, Comparing Approaches Towards Governing Scientific Advisory Bodies on Food Safety in the United States and the European Union, 2010 WIS. L. REV. 627;
35. Michael Wilkinson, Three Conceptions of Law: Towards a Jurisprudence of Democratic Experimentalism, 2010 WIS. L. REV. 673. A comprehensive review of the new governance literature is outside the scope of this Article.
36. For a discussion of the policy arguments for participation as informing government and improving public decisions, see David Markell, "Slack" in the Administrative State and its Implications for Governance: The Issue of Accountability, 84 OR. L. REV. 1 (2005).
37. For an argument against more participation, see generally JOHN R. HIBBING & ELIZABETH THEISS-MORSE, STEALTH DEMOCRACY: AMERICANS' BELIEFS ABOUT HOW GOVERNMENT SHOULD WORK (2002).
38. See, e.g., JAMES S. FISHKIN, VOICE OF THE PEOPLE: PUBLIC OPINION AND DEMOCRACY (1995);
39. JAMES S. FISHKIN, WHEN THE PEOPLE SPEAK: DELIBERATIVE DEMOCRACY AND PUBLIC CONSULTATION (2009);
40. ARCHON FUNG & ERIK OLIN WRIGHT, DEEPENING DEMOCRACY: INSTITUTIONAL INNOVATIONS IN EMPOWERED PARTICIPATORY GOVERNANCE (2003);
41. ARCHON FUNG, EMPOWERED PARTICIPATION: REINVENTING URBAN DEMOCRACY (2004);
42. JOHN GASTIL, BY POPULAR DEMAND: REVITALIZING REPRESENTATIVE DEMOCRACY THROUGH DELIBERATIVE ELECTIONS (2000);
43. JOHN GASTIL, POLITICAL COMMUNICATION AND DELIBERATION (2008);
44. JANE J. MANSBRIDGE, BEYOND ADVERSARY DEMOCRACY (1980).
45. See generally William H. Simon, Solving Problems vs. Claiming Rights: The Pragmatist Challenge to Legal Liberalism, 46 WM. & MARY L. REV. 127 (2004) (reconsidering Legal Liberalism "in the light of the Pragmatist approach and to offer a tentative appraisal").
46. See generally Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267 (1998).
47. Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 HARV. L. REV. 1511, 1541 (1992).
48. Achieving desired outcomes or results also might be characterized as a fundamental value. It conceivably could be subsumed in the idea of efficiency or warrant treatment as a sixth fundamental value in the typology I propose. There are significant literatures as to how outcomes or results should be evaluated or measured, and also as to the definition of desired outcomes in the context of different regulatory regimes. Personal Communication with Prof. David L. Markell (Apr. 28, 2010) (on file with author). Substantive effectiveness is reflected in administrative law through requirements for cost-benefit analysis. See generally John D. Graham, Saving Lives Through Administrative Law and Economics, 157 U. PA. L. REV. 395 (2008).
49. It is also reflected in the Government Performance and Results Act, 31 U.S.C. §§ 1105-1119, 3515, 9703-9704 (2006), which requires agencies to develop strategic plans and establish metrics for the success of their work. Yet a third alternative is that all administrative laws seek to improve the quality of substantive decision-making by addressing the forms and sources of information upon which agencies act. Thus, the five values reflect the use of process: effectiveness examines outcome. This Article will focus on administrative law as process. An examination of these values and their relation to administrative outcomes will be a subject of future research.
50. 5 U.S.C. §§ 571-584 (2006).
51. See generally Colin Campbell, The Complex Organization of the Executive Branch: The Legacies of Competing Approaches to Administration, in THE EXECUTIVE BRANCH 243 (Joel D. Aberbach & Mark A. Peterson eds., 2005). Table 1 reflects the great variation across departments in employees (from several thousand to millions) and budget (in billions).
52. Id. at 254.
53. See, e.g., Seidenfeld, supra note 14, at 1541.
54. BERNARD SCHWARTZ, ADMINISTRATIVE LAW § 1.5 (3d ed. 1991).
55. See id. at §§ 1.7-1.9.
56. See generally Edward L. Rubin, Law and Legislation in the Administrative State, 89 COLUM. L. REV. 369, 387-97 (1989) (describing the relation of due process jurisprudence to the administrative agency context).
57. See Edward L. Rubin, Due Process and The Administrative State, 72 CAL. L. REV. 1044 (1984).
58. The additional complexities of federalism and intergovernmental relations are not addressed in detail here. For a discussion in the context of environmental governance, see Markell, supra note 10, at 19-40.
59. Charles R. Shipan, Congress and the Bureaucracy, in THE LEGISLATIVE BRANCH 432-58 (Paul J. Quirk & Sarah A. Binder eds., 2005).
60. Id. at 442-44.
61. A comprehensive survey of the literature regarding these values is beyond the scope of this Article. For thoughtful discussions of one or more of these values in administrative law and process, see, e.g., Markell, supra note 10 (examining the relationship between transparency and accountability);
62. David L. Markell & Tom R. Tyler, Using Empirical Research to Design Government Citizen Participation Processes: A Case Study of Citizens' Roles in Environmental Compliance and Enforcement, 57 U. KAN. L. REV. 1 (2008) (examining empirical evidence regarding claims that citizen participation leads to inefficient decision-making);
63. Jim Rossi, Participation Run Amok: The Costs of Mass Participation for Deliberative Agency Decisionmaking, 92 NW. U. L. REV. 173 (1997) (arguing that mass participation in agency decision-making is economically inefficient and comes at the expense of deliberative democratic practice);
64. Edward Rubin, The Myth of Accountability and the Anti-Administrative Impulse, 103 MICH. L. REV. 2073 (2005) (providing an in-depth analysis of theories of administrative accountability and debunking many of them);
65. Seidenfeld, supra note 14 (advocating deliberative public participation early in the policy development process in administrative agencies as a means of ensuring accountability and legitimacy);
66. Mark Seidenfeld, Empowering Stakeholders: Limits on Collaboration as the Basis for Flexible Regulation, 41 WM. & MARY L. REV. 411 (2000) (critiquing arguments in favor of collaboration as a means to make the regulatory system more efficient, and arguing for participation by a community of individuals with common interests who represent and are accountable to stakeholders);
67. Mark Seidenfeld, The Psychology of Accountability and Political Review of Agency Rules, 51 DUKE L.J. 1059 (2001) (examining and critiquing Office of Management and Budget scrutiny of cost-benefit analyses, congressional committee oversight of rulemaking, and congressional fast-track review as means of accountability);
68. Richard B. Stewart, U.S. Administrative Law: A Model for Global Administrative Law?, LAW & CONTEMP. PROBS., Summer/Autumn 2005, at 63 (examining how U.S. administrative law might provide a model for making global regulatory regimes more accountable through participation, transparency, and judicial review).
69. 5 U.S.C. §§ 551-559, 701-706 (2006).
70. Id. § 552.
71. Id. § 552b.
72. Id. app. §§ 1-16.
73. Id. §§ 561-570.
74. Id. §§ 571-584 (2006).
75. 44 U.S.C. § 3601 (2006)
76. Id. § 3501 (2006).
77. 5 U.S.C. §§ 551-559, 701-706 (2006).
78. FEDERAL ADMINISTRATIVE PROCEDURE SOURCEBOOK 42-46 (William F. Funk et al. eds., 4th ed. 2008).
79. Edward Rubin, It's Time to Make the Administrative Procedure Act Administrative, 89 CORNELL L. REV. 95, 97-100 (2003) (arguing that the APA does not address the reality of the modern administrative state by conceiving of agencies as similar to courts). Professor Rubin argues for a new APA based on a conception of "administrative governance as an instrumentally rational process carried out by institutions with defined jurisdiction, a hierarchical structure, expert staff, and continuous operation."
80. Id. at 189. He proposes that accountability would require a definition of an agency's goal, specification of the means, and, if rulemaking, input from the president, Congress, and the public.
81. Id. However, he also advocates that in the case of informal adjudication and interpretive rules, "participation would be limited to the hierarchical superior of the agency or subagency . . . ."
82. Id. I respectfully disagree with this last point; agencies already seek more extensive public engagement upstream in the policy process and outside notice and comment rulemaking. They do so because an ounce of good public involvement is worth a pound of litigation after the fact.
83. The iconic administrative law case example of informal adjudication gone wrong for lack of appropriately designed public involvement is Citizens to Preserve Overton Park, Indiana v. Volpe, 401 U.S. 402 (1971), one of many examples of conflict over how the national interstate highway system did damage to American urban communities.
84. Rubin, supra note 37, at 106.
85. Id.
86. Id.
87. Id. at 102 (observing that "few people other than professional lobbyists or lawyers . . . read the Federal Register, send comments to agencies regarding proposed rules, or challenge the legality of such rules in federal court").
88. 5 U.S.C. § 553 (2006).
89. Rubin, supra note 37, at 107.
90. Id. at 100.
91. 5 U.S.C. § 554 (2006).
92. Id.
93. Rubin, supra note 37, at 107.
94. Section 555(e) of 5 U.S.C., titled "Ancillary matters," states: (e) Prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding. Except in affirming a prior denial or when the denial is self-explanatory, the notice shall be accompanied by a brief statement of the grounds for denial.
95. 295 U.S. 495 (1935).
96. See generally Rubin, supra note 37.
97. The District of Columbia Circuit Court of Appeals described informal agency action as a problem from the standpoint of the judicial review in Appalachian Power Co. v. Environmental Protection Agency, 208 F.3d 1015, 1020 (D.C. Cir. 2000) (holding that an EPA guidance document entitled "Periodic Monitoring Guidance for Title V Operating Permits Programs" should have gone through the APA rulemaking process because it expanded the scope of a section of the Code of Federal Regulations). The court concluded: The phenomenon we see in this case is familiar. Congress passes a broadly worded statute. The agency follows with regulations containing broad language, open-ended phrases, ambiguous standards and the like. Then as years pass, the agency issues circulars or guidance or memoranda, explaining, interpreting, defining and often expanding the commands in the regulations. One guidance document may yield another and then another and so on. Several words in a regulation may spawn hundreds of pages of text as the agency offers more and more detail regarding what its regulations demand of regulated entities. Law is made, without notice and comment, without public participation, and without publication in the Federal Register or the Code of Federal Regulations. With the advent of the Internet, the agency does not need these official publications to ensure widespread circulation; it can inform those affected simply by posting its new guidance or memoranda or policy statement on its web site. An agency operating in this way gains a large advantage. "It can issue or amend its real rules, i.e., its interpretative rules and policy statements, quickly and inexpensively without following any statutorily prescribed procedures."
98. Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L. REV. 59, 85 (1995). The agency may also think there is another advantage-immunizing its lawmaking from judicial review.
99. Id. at 1020 (citation omitted).
100. See also Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 23, 30 (D.C. Cir. 2006) (Griffith, J., dissenting). This judicial view tends to make agencies gun-shy. However, the problem in each instance is that while there is transparency, there is no public participation.
101. FEDERAL ADMINISTRATIVE PROCEDURE SOURCEBOOK, supra note 36, at 676-90, 725-32.
102. 5 U.S.C. § 552 (2006).
103. Id. § 552b (2006).
104. Id. §§ 552, 552b.
105. See David Faure, Note, The Federal Advisory Committee Act: Balanced Representation and Open Meetings Conflict with Dispute Resolution, 11 OHIO ST. J. ON DISP. RESOL. 489, 490, 518 (1996) (arguing that FACA, which subjects advisory committees to open meetings and public records requirements under 5 U.S.C. § 552, interferes with the function of negotiated rulemaking and consensus-building processes);
106. see also LAURI DIANA BOXER-MACOMBER, CTR. FOR COLLABORATIVE POL'Y, TOO MUCH SUN? EMERGING CHALLENGES PRESENTED BY CALIFORNIA & FEDERAL OPEN MEETING LEGISLATION TO PUBLIC POLICY CONSENSUS-BUILDING PROCESSES (2003), available at http://www.csus.edu/ccp/publications/Too-Much-Sun.pdf.
107. See INTERAGENCY ADR WORKING GROUP STEERING COMM., PROTECTING THE CONFIDENTIALITY OF DISPUTE RESOLUTION PROCEEDINGS: A GUIDE FOR FEDERAL WORKPLACE ADR PROGRAM ADMINISTRATORS (2006), available at http://www.usdoj.gov/adr/pdf/ final-confid.pdf.
108. For a comprehensive review of FACA that includes its history, case law to that date, and a survey of agency administrators, see Steven P. Croley & William F. Funk, The Federal Advisory Committee Act and Good Government, 14 YALE J. ON REG. 451 (1997).
109. See id. at 549.
110. Id. at 453 (citation omitted).
111. 5 U.S.C. app. § 2(b) (2006).
112. See generally RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE 297-300 (Supp. 2006).
113. See 5 U.S.C. app. § 2.
114. Id. § 5(b)(2).
115. BOXER-MACOMBER, supra note 56, at 4.
116. 5. U.S.C. app. § 3(3) (2006) ("The term 'agency' has the same meaning as in section 551(1) of title 5, United States Code.").
117. Id. § 8(b)(2)-(3) (2006) (providing that agency heads must designate an advisory committee management officer who is responsible for assembling and maintaining "the reports, records, and other papers of any such committee during its existence" and also for carrying out "on behalf of that agency, the provisions of section 552 of title 5, United States Code, with respect to such reports, records, and other papers").
118. Id. § 552b (2006) (providing for open meetings).
119. Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 453 (1989) (holding that FACA does not apply to the president and Department of Justice use of an American Bar Association committee's report evaluating the credentials of judges for nomination to the federal judiciary, because "FACA was enacted to cure specific ills, above all the wasteful expenditure of public funds for worthless committee meetings and biased proposals").
120. 5 U.S.C. app. § 4(c) (2006) provides: Nothing in this Act shall be construed to apply to any local civic group whose primary function is that of rendering a public service with respect to a Federal program, or any State or local committee, council, board, commission, or similar group established to advise or make recommendations to State or local officials or agencies.
121. President William J. Clinton reported to Congress in 1998, in the twentyseventh and final such mandated report, on the reduction of advisory committees and their attendant costs during his administration in keeping with this goal. PRESIDENT OF THE U.S., THE TWENTY-SEVENTH ANNUAL REPORT ON FEDERAL ADVISORY COMMITTEES FOR FISCAL YEAR 1998, PURSUANT TO 5 U.S.C. APP., H.R. DOC. 106-209, at 4 (2000).
122. See Croley & Funk, supra note 58, at 456 (describing President Clinton's efforts to encourage negotiation and consensus building and how these are in tension with his goal of reducing the number of advisory committees by one-third).
123. Personal Communication with Susan Podziba, Principal, Susan Podziba & Associates (Apr. 23, 2009) (on file with author). See generally Susan Podziba & Associates, About Us, http://www.podziba.com/aboutus.html (last visited Mar. 3, 2010).
124. The Department of Health and Human Services violated FACA when it "utilized" a guide that a National Academy of Sciences committee created on the care and use of laboratory animals, although the Department had not itself established the committee. Animal Legal Def. Fund, Inc. v. Shalala, 104 F.3d 424, 428 (D.C. Cir. 1997). Subsequently, Congress amended FACA specifically to exclude committees of the National Academy of Public Administration (NAPA) and the National Academy of Sciences.
125. Federal Advisory Committee Act Amendments of 1997, Pub. L. 105-53, 111 Stat. 2689 (codified at 5 U.S.C. app. § 15 (2010)). As a consequence of this amendment, federal agencies can take advantage of the convening services of NAPA as an alternative to using FACA-chartered committees. This was part of the genesis for The Collaboration Project, http://www.collaborationproject.org/ display/home/Home (last visited Mar. 17, 2010). In addition, the General Services Administration issued regulations that later clarified that the term "[u]tilized " in FACA "does not have its ordinary meaning.
126. A committee that is not established by the Federal Government is utilized within the meaning of the Act when the president or a Federal office or agency exercises actual management or control over its operation." 41 C.F.R. § 102-3.25 (2002).
127. For example, after publishing notice that it proposed to list an endangered species and list critical habitat, the Department of the Interior commissioned scientists to study the issue and report back individually; however, when it decided to convene a meeting so the scientists could collaborate on a single report, it ran afoul of FACA. Alabama Tombigbee Rivers Coalition v. Dep't of the Interior, 26 F.3d 1103 (11th Cir. 1994) (holding that the principal purpose of FACA is to permit public participation and transparency during the work of the advisory committee, and permanently enjoining use of the scientists' report as the remedy for violating the Act). In other words, the agency had to foresee that it might find it desirable to ask the scientists to collaborate before it ever commissioned the work.
128. Id. at 1105-06. Federal agencies can build technical advisory committees into permits or licenses, provided the committees are giving advice to the permittee or licensee, not to the federal agency itself.
129. Cowlitz Indian Tribe v. Fed. Energy Regulatory Comm'n, 186 F. App'x 806 (9th Cir. 2006) (upholding a committee to advise Tacoma as a condition of its license to continue operating a hydroelectric project).
130. See, e.g., Charles Howton et al., Presentation at the 5th National Environmental Conflict Resolution Conference: FACA For Facilitators-Experience from the Field (May 22, 2008), available at http://www.fs.fed.us/emc/nepa/ ecr2008/sessions/materials/25/FACA%20for%20Facilitatators%20Presentation.pdf.
131. See 5 U.S.C. app. §§ 2, 5-15 (2006).
132. FEDERAL ADMINISTRATIVE PROCEDURE SOURCEBOOK, supra note 36, at 397-410, 941-47.
133. FEDERAL ADMINISTRATIVE DISPUTE RESOLUTION DESKBOOK 1, 9 (2001).
134. Negotiated Rulemaking Act of 1990, Pub. L. No. 101-648, 104 Stat. 4969 (codified as amended at 5 U.S.C. §§ 561-570 (2006));
135. Administrative Dispute Resolution Act of 1990, Pub. L. No. 101-552, 104 Stat. 2736 (codified as amended at 5 U.S.C. §§ 551-559, 701-706 (2006)).
136. See Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, 110 Stat. 3870 (codified as amended in scattered sections of 5 U.S.C.).
137. 5 U.S.C. § 565 (2006).
138. FEDERAL ADMINISTRATIVE PROCEDURE SOURCEBOOK, supra note 36, at 403-05.
139. Steven J. Balla, Between Commenting and Negotiation: The Contours of Public Participation in Agency Rulemaking, 1 I/S: J.L. & POL'Y FOR INFO. SOC'Y 59, 65 (2005) (observing that only 4 of 204 major federal agency rules issued between March 1996 to June 1999 used negotiated rulemaking).
140. See generally JEFFREY M. SENGER, FEDERAL DISPUTE RESOLUTION: USING ADR WITHIN THE UNITED STATES GOVERNMENT 2 (2003); Interagency Alternative Dispute Resolution Working Group, http://www.adr.gov/index.html (last visited Mar. 5, 2010). For an early empirical study of agency ADR use,
141. see Lisa B. Bingham & Charles R. Wise, The Administrative Dispute Resolution Act of 1990: How Do We Evaluate Its Success?, 6 J. PUB. ADMIN. RES. & THEORY 383 (1996);
142. Tina Nabatchi, The Institutionalization of Alternative Dispute Resolution in the Federal Government, 67 PUB. ADMIN. REV. 646 (2007) (finding widespread use but uneven diffusion across agencies in a 2001 follow-up study).
143. See supra notes 31-32 and accompanying text.
144. SENGER, supra note 84, at 2-7;
145. Philip J. Harter, Assessing the Assessors: The Actual Performance of Negotiated Rulemaking, 9 N.Y.U. ENVTL. L.J. 32 (2000).
146. But see Cary Coglianese, Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip Harter, 9 N.Y.U. ENVTL. L.J. 386 (2001);
147. Cary Coglianese, Assessing Consensus: The Promise and Performance of Negotiated Rulemaking, 46 DUKE L.J. 1255 (1997).
148. 5 U.S.C. § 562(7) (2006).
149. Id. § 574 (2006).
150. 44 U.S.C. § 3501 (2006).
151. Genie N.L. Stowers, The State of Federal Web Sites: The Pursuit of Excellence, in E-GOVERNMENT 2003, at 17-52 (Mark A. Abramson & Therese L. Morin eds., 2003) (documenting the evolution of federal Web sites as of 2002).
152. Information Technology Management Reform Act of 1996, Pub. L. No. 104-06, 110 Stat. 679 (codified at 40 U.S.C. §§ 11,101, 11,302 (2010)).
153. E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899 (codified at 44 U.S.C. §§ 3601-3606 (2006)).
154. COMM. ON THE STATUS & FUTURE OF FEDERAL E-RULEMAKING, ACHIEVING THE POTENTIAL: THE FUTURE OF FEDERAL E-RULEMAKING, A REPORT TO CONGRESS AND THE PRESIDENT (2008), available at http://ceri.law.cornell.edu/erm-comm.php.
155. Id. at 12.
156. Id. at 24-25.
157. Id. at 31.
158. Id. at 7.
159. Id. at 14.
160. Id. at 8.
161. Id. at 37-40.
162. 44 U.S.C. §§ 3601-3606.
163. Id. § 3602(9). Unlike many other administrative laws, it makes express reference to collaboration and dialogue among federal, state, local, and tribal government leaders on electronic government in the executive, legislative, and judicial branches, as well as leaders in the private and nonprofit sectors, to encourage collaboration.
164. Id.
165. Personal Communications with Frank DiGiammarino, Director of Collaboration Project, National Academy of Public Administration (Aug. 2008) (on file with author). See generally The Collaboration Project, http://www.collaborationproject.org/display/home/Home (last visited Mar. 5, 2010).
166. For a description of AmericaSpeaks projects and models, see AmericaSpeaks, http://www.americaspeaks.org/ (last visited Mar. 5, 2010).
167. Personal Communication with Robert Carlitz, Executive Director, Information Renaissance (Nov. 29-Dec. 1, 2007) (on file with author).
168. See generally Information Renaissance, http://www.info-ren.org/info-ren. shtml (last visited Mar. 5, 2010).
169. Searches of "agency and particip! w/2 public and web or internet or online" yielded primarily a handful of cases in which agencies had published a document online and there was no public participation. Westlaw search performed by Nathaniel Holton on Nov. 14, 2009 (on file with author).
170. NAT'L RESEARCH COUNCIL, PUBLIC PARTICIPATION IN ENVIRONMENTAL ASSESSMENT AND DECISION-MAKING 36-37 (2008);
171. THOMAS C. BEIERLE & JERRY CAYFORD, DEMOCRACY IN PRACTICE: PUBLIC PARTICIPATION IN ENVIRONMENTAL DECISIONS 3 (2002).
172. NAT'L RESEARCH COUNCIL, supra note 107, at 37.
173. ADVISORY COMM'N ON INTERGOVERNMENTAL RELATIONS, CITIZEN PARTICIPATION IN THE AMERICAN FEDERAL SYSTEM 100 (1979);
174. DANIEL P. MOYNIHAN, MAXIMUM FEASIBLE MISUNDERSTANDING: COMMUNITY ACTION IN THE WAR ON POVERTY 87, 160-61 (1969) (describing how the phrase maximum feasible participation evolved into a theory of social change that those served by the community action program would participate in its governance).
175. ADVISORY COMM'N ON INTERGOVERNMENTAL RELATIONS, supra note 109, at 100.
176. Between October 2008 and May of 2009, law student researchers at Indiana University sifted through the United States Code and Code of Federal Regulations to locate any statutory references relevant to "public participation," as well as, alternative terms representing similar concepts of collaborative governance. The Westlaw search terms included: "hearing," "notice w/10 public," "collaborat!," "public hearing," "public notice," "deliberat!," "public access," "public w/2 particip!," "public participation," "notice and comment," "public w/2 involv!," "public awareness," "stakeholder!," "collaborat! /p public," "dialogue," "public hearing /p," "fed! regist!," "public involve!," "public w/2 engag!," "civic engagement," "public rulemaking," "roundtable!," "defin! /p"public," participation," "focus group!," "citizen jur!," "share w/2 decision," "deliberative democracy," "public conversation," "participatory budgeting," "partic! budget!," "study circle!," "collab! policy!," and "stakeholder citi!" (on file with author).
177. A search of the United States Code using "public participation" and defin! provided 118 results, but in none of these was the word definition used in connection with public participation. Westlaw search conducted by author on Apr. 19, 2010 (on file with author).
178. "Public Participation" most notably occurs within proximity to rulemaking. See, e.g., 16 U.S.C. § 825q-1 (2006) (Office of Public Participation);
179. id. § 1612 (2006) (Public Participation);
180. id. § 5157 (2006) (Public Participation in Preparation of Management Plans and Amendments);
181. id. § 6803 (2006) (Public Participation);
182. 31 U.S.C. § 6710 (2006) (Public Participation);
183. 42 U.S.C. § 6974 (2006) (Petition for Regulations: Public Participation);
184. id. § 7921 (2006) (Public Participation: Public Hearings);
185. id. § 9617 (2006) (Public Participation);
186. 50 U.S.C. § 2159 (2006) (Public Participation in Rulemaking);
187. id. § 2588 (2006) (Public Participation in planning for environmental restoration and waste management at defense nuclear facilities).
188. NAT'L RESEARCH COUNCIL, supra note 107, at 37.
189. For example, 16 U.S.C. § 6104 (2006), provides in part: (c) Project proposals To be considered for financial assistance for a project under this chapter, an applicant shall submit a project proposal that-(1) includes(D) an estimate of the funds and time necessary to complete the project, including sources and amounts of matching funds; (2) demonstrates that the project will enhance the conservation of neotropical migratory bird species in the United States, Canada, Latin America, or the Caribbean; (3) includes mechanisms to ensure adequate local public participation in project development and implementation . . . .
190. Id. (emphasis added).
191. For example, 43 U.S.C.A. § 390jj (West 2007), provides in part: (c) Coordination of ongoing programs; full public participation The Secretary is authorized and directed to enter into memorandums of agreement with those Federal agencies having capability to assist in implementing water conservation measures to assure coordination of ongoing programs. Such memorandums should provide for involvement of non-Federal entities such as States, Indian tribes, and water user organizations to assure full public participation in water conservation efforts. Id. (emphasis added).
192. See also id. § 1786(d)(3) (West Supp. 2009);
193. id. § 1787(c)(2) (West Supp. 2009),
194. which provides in part: (2) Consultation; public participation The management plan shall be developed - (A) in consultation with appropriate Federal, State, county, and local government agencies, the Commandant, the Local Partners, and other partners; and (B) in a manner that ensures full public participation.
195. Id. (emphasis added).
196. See, e.g., 7 U.S.C.A. § 2009aa-6(d) (West Supp. 2009) (providing that "[t]he Authority and applicable State and local development districts shall encourage and assist, to the maximum extent practicable, public participation in the development, revision, and implementation of all plans and programs under this subchapter") (emphasis added).
197. See, e.g., 50 U.S.C.A. app. § 2412(b) (West 1991) (titled "Public participation" and providing that "[i]t is the intent of the Congress that, to the extent practicable, all regulations imposing controls on exports under this Act [sections 2401 to 2420 of this Appendix] be issued in proposed form with meaningful opportunity for public comment before taking effect. In cases where a regulation imposing controls under this Act [sections 2401 to 2420 of this Appendix] is issued with immediate effect, it is the intent of the Congress that meaningful opportunity for public comment also be provided and that the regulation be reissued in final form after public comments have been fully considered ") (emphasis added).
198. For example, 49 U.S.C.A. § 5307 (West 2007) (a Department of Transportation grant program), provides in part: (c) Public participation requirements.-Each recipient of a grant shall(1) make available to the public information on amounts available to the recipient under this section and the program of projects the recipient proposes to undertake; (2) develop, in consultation with interested parties, including private transportation providers, a proposed program of projects for activities to be financed; (3) publish a proposed program of projects in a way that affected citizens, private transportation providers, and local elected officials have the opportunity to examine the proposed program and submit comments on the proposed program and the performance of the recipient; (4) provide an opportunity for a public hearing in which to obtain the views of citizens on the proposed program of projects; (5) ensure that the proposed program of projects provides for the coordination of public transportation services assisted under section 5336 of this title with transportation services assisted from other United States Government sources; (6) consider comments and views received, especially those of private transportation providers, in preparing the final program of projects; and (7) make the final program of projects available to the public.
199. Id. § 5307(c).
200. See, e.g., 50 U.S.C.A. § 2584(f)(1) (West Supp. 2009)
201. ("The Secretary of Energy shall consult with the Administrator of the Environmental Protection Agency, the Attorney General, Governors and Attorneys General of affected States, appropriate representatives of affected Indian tribes, and interested members of the public in the development of information necessary to complete the reports required by subsections (a), (b), and (d) of this section.").
202. See, e.g., 16 U.S.C.A. § 1276(b)(13) (West 2000 & Supp. 2009)
203. (providing in part that "[f]or purposes of such river studies, the Secretary shall consult with each River Study Committee authorized under section 5 of the Michigan Scenic Rivers Act of 1990, and shall encourage public participation and involvement through hearings, workshops, and such other means
204. See also 16 U.S.C.A. § 1854(i)(4) (West 2000 & Supp. 2009) (referring to "workshops or other appropriate means of public involvement").
205. See, e.g., 42 U.S.C.A. § 300ff-12(b)(4) (West Supp. 2009) ("The planning council established or designated under paragraph (1) shall . . . (G) establish methods for obtaining input on community needs and priorities which may include public meetings (in accordance with paragraph (7)), conducting focus groups, and convening ad-hoc panels . . . .") (emphasis added).
206. See, e.g., 16 U.S.C.A. § 1455b(b)(5) (West 2000) ("Opportunities for public participation in all aspects of the program, including the use of public notices and opportunities for comment, nomination procedures, public hearings, technical and financial assistance, public education, and other means.") (emphasis added).
207. For example, 16 U.S.C.A. § 1604(d) (West 2000) provides: (d) Public participation in management plans; availability of plans; public meetings The Secretary shall provide for public participation in the development, review, and revision of land management plans including, but not limited to, making the plans or revisions available to the public at convenient locations in the vicinity of the affected unit for a period of at least three months before final adoption, during which period the Secretary shall publicize and hold public meetings or comparable processes at locations that foster public participation in the review of such plans or revisions.
208. For example, 16 U.S.C.A. § 4303(c) (West 2000 & Supp. 2009) provides that: The Secretary shall(1) ensure that significant caves are considered in the preparation or implementation of any land management plan if the preparation or revision of the plan began after November 18, 1988; and (2) foster communication, cooperation, and exchange of information between land managers, those who utilize caves, and the public.
209. See, e.g., 22 U.S.C.A. § 262o -1(b)(2) (West 2004) (providing that "the respective institution supports lending operations which assist efforts of recipient governments to promote good governance, including public participation . . . .") (emphasis added). Similarly, 22 U.S.C.A. § 262p-6(a)(1)(F) (West 2004) ties together poverty reduction, good governance, transparency, and participation of citizens, and urges countries "to broaden public participation and popular understanding of the principles and goals of poverty reduction, particularly through economic growth, and good governance . . . ."
210. Id.
211. For example, 16 U.S.C.S. § 1a-5(c)(1) (LexisNexis 2005), "Additional areas for National Park System," provides: (c) Report. (1) The Secretary shall complete the study for each area for potential inclusion in the National Park System within 3 complete fiscal years following the date on which funds are first made available for such purposes. Each study under this section shall be prepared with appropriate opportunity for public involvement, including at least one public meeting in the vicinity of the area under study, and after reasonable efforts to notify potentially affected landowners and State and local governments.
212. Id.
213. (emphasis added). For similar references as to national parks, management plans, and conservation, see, e.g., id. § 410oo-5(c) (LexisNexis 2005) (providing in part that "Advisory Commission meetings shall be held at locations and in such a manner as to ensure adequate public involvement");
214. id. § 410qq-2(g)(2) (LexisNexis 2005) ("Notice of meetings and agenda shall be announced in advance and meetings shall be held at locations and in such a manner as to insure adequate public involvement.");
215. id. § 410tt-3(c)(1) (LexisNexis 2005)
216. (providing in part that "the Secretary, in consultation with the Commission, and with public involvement, shall develop and submit to the Committee on Energy and Natural Resources of the United States Senate and the Committee on Natural Resources of the United States House of Representatives a general management plan for the park");
217. see also id. § 410tt-4(f) (LexisNexis 2005);
218. id. § 410iii-7(f) (LexisNexis 2005);
219. id. § 429b (LexisNexis 2007);
220. id. § 430g-8(c) (LexisNexis 2007);
221. id. § 460ii-5(c) (LexisNexis 2007);
222. id. § 460kk-5(n)(3)(A) (LexisNexis 2007);
223. id. § 460vv-13(a) (LexisNexis 2007);
224. id. § 460aaa-6(a) (LexisNexis 2007);
225. id. § 539m-5(a)(3) (LexisNexis 2009);
226. id. § 544(e) (LexisNexis 2009);
227. id. § 668dd(e)(4)(A) (LexisNexis 2009);
228. id. § 669 (LexisNexis Supp. 2009);
229. id. § 698r(f) (Lawyers Coop. Publ'g 1994);
230. id. § 698u-5(f) (LexisNexis Supp. 2009);
231. id. § 839b(g)(1) (Lexis Publ'g 2000);
232. id. § 1244(a)(22)(E) (Lexis Publ'g 2000 & LexisNexis Supp. 2009);
233. id. § 1274(67)(B)(iii) (Lexis Publ'g 2000);
234. id. § 1601[(c)](d) (Lexis Law Publ'g 1999);
235. id. § 1604(f)(4) (Lexis Law Publ'g 1999);
236. id. § 1854(i)(4) (LexisNexis Supp. 2009);
237. id. § 6803(c) (LexisNexis 2007).
238. For examples in education, see, e.g., 20 U.S.C.S. § 1098(a)(1) (LexisNexis 2009);
239. in highways, see, e.g., 23 U.S.C.S. § 134(k)(5)(d) (LexisNexis 2009);
240. as to navigable waters, see, e.g., 33 U.S.C.S. § 1509(a) (LexisNexis 2005);
241. as to public health, see, e.g., 42 U.S.C.S. § 1397gg(c) (Lexis Publ'g 2001);
242. and as to transportation, see, e.g., 49 U.S.C.S. § 5303(k)(5)(D) (LexisNexis Supp. 2009);
243. id. § 5305(e)(4) (LexisNexis Supp. 2009).
244. See, e.g., 16 U.S.C.S. § 45f(e) (LexisNexis 2005), provides in part: (2)(A)
245. In preparing the comprehensive management plan required by this subsection and in preparing any subsequent revision of such plan, the Secretary shall provide for full public participation and shall consider the comments and views of all interested agencies, organizations, and individuals. (B) For purposes of insuring such full public participation, the Secretary shall provide reasonable advance notice to State and local governments, interested Federal agencies, private organizations, and the general public of hearings, workshops, meetings, and other opportunities available for such participation. Such notice shall be published in newspapers of general circulation in the localities affected by the development and management of the park, published in the Federal Register, and communicated by other appropriate means. The Western Regional Advisory Committee of the National Park Service (or a subcommittee thereof) shall also be utilized for purposes of facilitating public involvement.
246. Id. (emphasis added).
247. 43 U.S.C.S. § 1702(d) (Lawyers Coop. Publ'g 1995).
248. See also id. § 1712(f) (Lawyers Coop. Publ'g 1995);
249. id. § 1714(c)(10) (Lawyers Coop. Publ'g 1995).
250. See, e.g., 20 U.S.C.S. § 1161w(c) (LexisNexis Supp. 2009)
251. ("A community college awarded a grant under this part [this section] may use such grant to . . . (2) establish and carry out an education program that includes classes for eligible individuals that . . . (C) promote the civic engagement of such individuals . . . .");
252. U.S.C.S. § 3002(12) (LexisNexis 2008) ("The term 'civic engagement' means an individual or collective action designed to address a public concern or an unmet human, educational, health care, environmental, or public safety need.");
253. id. § 3012(c)(1) (LexisNexis 2008) (concerning "[c]ommunity capacity-building initiatives" that will "encourage and permit volunteer groups (including organizations carrying out national service programs and including organizations of youth in secondary or postsecondary school) that are active in supportive services and civic engagement to participate and be involved individually or through representative groups in supportive service and civic engagement programs or activities to the maximum extent feasible . . . .");
254. id. § 3056n(2)
255. (LexisNexis 2008) (stating that "[i]t is the sense of Congress that . . . placing older individuals in community service positions strengthens the ability of the individuals to become self-sufficient, provides much-needed support to organizations that benefit from increased civic engagement, and strengthens the communities that are served by such organizations");
256. id. § 12,639a(d)(1)(B) (LexisNexis 2010) (referring to "voting and other forms of political and civic engagement");
257. see also id. § 3026(b)(3)(I) (LexisNexis 2008);
258. id. § 3032f(a)(1) (LexisNexis 2008);
259. id. § 12,523(a)(5) (LexisNexis 2010);
260. id. § 12,572(j) (LexisNexis 2010);
261. id. § 12,638(g)(2)(C) (LexisNexis 2010);
262. id. § 12,639(k)(6) (LexisNexis 2010);
263. id. § 12,653k(f)(3)(G) (LexisNexis 2010).
264. Between October 2008 and May 2009, law student researchers at Indiana University sifted through the Code of Federal Regulations to locate any statutory references relevant to "public participation," as well as, alternative terms representing similar concepts of collaborative governance. The Westlaw search terms included; "hearing," "notice w/10 public," "collaborat!," "public hearing," "public notice," "deliberat!," "public access," "public w/2 particip!," "public participation," "notice and comment," "public w/2 involv!," "public awareness," "stakeholder!," "collaborat! /p public," "dialogue," "public hearing /p," "fed! regist!," "public involve!," "public w/2 engag!," "civic engagement," "public rulemaking," "roundtable!," "defin! /p"public," participation," "focus group!," "citizen jur!," "share w/2 decision," "deliberative democracy," "public conversation," "participatory budgeting," "partic! budget!," "study circle!," "collab! policy!," and "stakeholder citi!" (on file with author).
265. See, e.g., 11 C.F.R. § 9407.2 (2009) (providing in part that "[a]s used in this part, the term . . . Public participation means the presentation or discussion of information, raising of questions, or other manner of involvement in a meeting of the Commission by one or more members of the public in a manner that contributes to the disposition of Commission business");
266. C.F.R. § 216.2(b)(2009) (providing in part that "[p]ublic participation activities are actions initiated by the Forest Service to facilitate an exchange of information with the public. These actions include, but are not limited to, oral and written measures such as public notices, letters, discussion papers, and gatherings such as meetings, workshops, and hearings");
267. id. § 219.16 (2009) (providing in part that "[d]efinitions of the special terms used in this subpart are set out in alphabetical order. . . . Public participation: Activities that include a wide range of public involvement tools and processes, such as collaboration, public meetings, open houses, workshops, and comment periods");
268. 40 C.F.R. § 300.5 (2009)
269. (providing in part that "[t]erms not defined in this section have the meaning given by CERCLA, the OPA, or the CWA. . . . Public participation, see the definition for community relations. . . . Community relations means EPA's program to inform and encourage public participation in the Superfund process and to respond to community concerns. The term 'public' includes citizens directly affected by the site, other interested citizens or parties, organized groups, elected officials, and potentially responsible parties (PRPs)");
270. 50 C.F.R. § 560.2 (2009)
271. (providing in part that "[f]or purposes of this part, the term . . . Public Participation means the presentation or discussion of information, raising of questions, or other manner of involvement in a meeting of the Commission by one or more members of the public in a manner that contributes to the disposition of Commission business").
272. A search of "public access" % (public/2 particip!) yielded 1,316 results. Westlaw search performed on Apr. 20, 2010 (on file with author).
273. A search of "public notice" % (public/2 particip!) yielded 1,108 results. Westlaw search performed on Apr. 20, 2010 (on file with author).
274. See, e.g., 7 C.F.R. § 634.4(j)(4)(2009) (providing in part that "[t]he duties of the committee are to insure that a process exists . . . [t]o incorporate adequate public participation, including public meeting(s), and appropriate environmental assessment in the preparation of RCWP applications").
275. For example, 14 C.F.R. pt. 11, app. 1 (2009), provides in part: 3. What is DOT policy on ex parte contacts? It is DOT policy to provide for open development of rules and to encourage full public participation in rulemaking actions. In addition to providing opportunity to respond in writing to an NPRM and to appear and be heard at a hearing, DOT policy encourages agencies to contact the public directly when we need factual information to resolve questions of substance. It also encourages DOT agencies to be receptive to appropriate contacts from persons affected by or interested in a proposed action. But under some circumstances an ex parte contact could affect the basic openness and fairness of the rulemaking process. Even the appearance of impropriety can affect public confidence in the process. For this reason, DOT policy sets careful guidelines for these contacts. The kind of ex parte contacts permitted and the procedures we follow depend on when the contact occurs in the rulemaking process.
276. For example, 7 C.F.R. § 650.9 (2009), provides in part: (d) Public participation-(1) General. Public participation activities begin early in the EE and are to be appropriate to the proposed action. For example, extensive public participation activities are required in the implementation of new programs and project actions, but limited public participation is appropriate for nonproject technical and financial assistance programs on nonfederal land. (2) Early public involvement. The public is to be invited and encouraged to participate in the early stages of planning, including the consideration of the potential effects of NRCS-assisted actions on significant environmental resources such as wetlands, flood plains, cultural values, endangered species, important farmland. (3) Project activities. The following are general considerations for providing opportunities for public participation: (i) Identification of interested public. The interested public consisting of but not limited to individuals, groups, organizations, and government agencies are to be identified, sought out, and encouraged to participate in and contribute to interdisciplinary planning and environmental evaluation. (ii) Public notices. (40 CFR 1506.6) If the effects of an action are primarily of local concern, notice of each public meeting or hearing should be: Submitted to State and areawide clearinghouses pursuant to OMB Circular A-95 (revised); submitted to Indian tribes if they are interested; published in local newspapers; distributed through other local media; provided to potentially interested community organizations including small business associations; published in newsletters that may be expected to reach potentially interested persons; mailed directly to owners and occupants of nearby or affected property; and posted onsite and offsite in the area where the action is to be located. (iii) State statutes. If official action by the local units of government cooperating in the proposal is governed by State statute, the public notice and mailing requirement of the statute is to be followed. If the effects of an action are of national concern, notice is to be published in the FEDERAL REGISTER and mailed to national organizations reasonably expected to be interested. (iv) Public meetings. The RFO, after consultation with the sponsors, is to determine when public meetings or hearings are to be held. Public meetings may be in the form of a workshop, tour, open house, etc. Public involvement will include early discussion of flood-plain management and protection of wetlands, where appropriate. Environmental information is to be presented and discussed along with other appropriate information. To the extent practical, pertinent information should be made available before the meetings. (v) Documentation. The RFO is to maintain a reviewable record of public participation in the environmental evaluation process. (4) Nonproject activities. Public participation in the planning and application of conservation practices with individual land users is accomplished primarily through conservation districts. These districts are governed by boards of supervisors directors, commissioners, etc., who are elected and/or appointed to insure that soil, water, related resources, and environmental qualities in the district are maintained and improved. The public is to be encouraged to participate in the development of long-range district programs and district annual plans. The district keeps the public informed through public meetings, district newsletters, news stories, radio and television programs, and annual reports.
277. For example, 18 C.F.R. § 4.38 (2009), titled "Consultation requirements," provides in part: (g) Public participation. (1) At least 14 days in advance of the joint meeting held pursuant to paragraph (b)(3) of this section, the potential applicant must publish notice, at least once, of the purpose, location, and timing of the joint meeting, in a daily or weekly newspaper published in each county in which the proposed project or any part thereof is situated. The notice shall include a summary of the major issues to be discussed at the joint meeting. (2)(i) A potential applicant must make available to the public for inspection and reproduction the information specified in paragraph (b)(2) of this section from the date on which the notice required by paragraph (g)(1) of this section is first published until a final order is issued on any license application. (ii) The provisions of § 4.32(b) will govern the form and manner in which the information is to be made available for public inspection and reproduction. (iii) A potential applicant must make available to the public for inspection at the joint meeting required by paragraph (b)(3) of this section at least two copies of the information specified in paragraph (b)(2) of this section.
278. See, e.g., 43 C.F.R. § 426.22(e)
279. (2009) (providing "Opportunities for public participation. (1) Reclamation can provide, as appropriate: meetings, workshops, or hearings to provide local information. Advance notice of meetings, workshops, or hearings will be provided to those parties who make timely written request for such notice. Request for notice of meetings, workshops, or hearings should be sent to the appropriate Reclamation regional or local office").
280. See, e.g., 43 C.F.R. § 1784.4-1
281. (providing, under the title "Calls for nominations," that "[e]xcept where otherwise provided, candidates for appointment to advisory committees are sought through public calls for public nominations. Such calls shall be published in the FEDERAL REGISTER and are made through media releases and systematic contacts with individuals and organizations interested in the use and management of public lands and resources").
282. 23 C.F.R. § 450.210 provides a long stakeholder list and requires reasonable public access to technical and policy information, adequate public notice of public involvement activities and time for public review and comment at key decision points, and "[t]o the maximum extent practicable" that meetings occur at convenient and accessible locations, use visualization techniques to describe the plan and studies, and make public information available electronically.
283. Id. at § 450.210(a)(1)(iv) (2009).
284. It also requires that the state plan demonstrate explicit consideration and response to public input and include a process for seeking out those traditional underserved and minority households, among other provisions.
285. For a collection of empirical studies on a variety of forms of public participation, see THE AGE OF DIRECT CITIZEN PARTICIPATION (Nancy C. Roberts ed., 2008) (describing citizens as co-producers, owners, and co-investors, individuals, in small groups, in large groups, for consensus-building and strategic planning, and using deliberative democracy).
286. USA.gov, A-Z Index of U.S. Government Departments and Agencies, http://www.usa.gov/Agencies/Federal/All-Agencies/index.shtml (last visited Mar. 31, 2010) (listing U.S. government agency Web sites).
287. See supra Part II.C.
288. Each of the following agency Web sites contain some form of public participation: Administration on Aging, Department of Health and Human Services, Press Room, http://www.aoa.gov/AoARoot/Press-Room/index.aspx (last visited May 16, 2010) (encouraging media advocacy);
289. Advisory Council on Historic Preservation, Protecting Historic Properties: A Citizen's Guide to Section 106 Review, http://www.achp.gov/ citizensguide.html (last visited May 16, 2010) (helping citizens make their voices heard) (last visited May 16, 2010);
290. Agricultural Research Service, United States Department of Agriculture, Contact Us, http://www.ars.usda.gov/contactus/contactus.htm (containing a feedback form);
291. AMTRAK, Amtrak Customer Advisory Committee, http://www.amtrak.com/ servlet/ContentServer?c=AM-Content-C&pagename=am%2FLayout&cid= 1241245659781 (last visited May 16, 2010) (soliciting opinions and complaints of Amtrak users);
292. Animal and Plant Health Inspection Service, United States Department of Agriculture, About APHIS: Legislative and Public Affairs (LPA), http://www.aphis.usda.gov/about-aphis/programs-offices/lpa/ (last visited May 16, 2010) (soliciting stakeholder communications);
293. Bureau of Alcohol, Tobacco, Firearms and Explosives, Contact ATF, http://www.atf.gov/contact/ (last visited May 16, 2010) (containing page soliciting feedback);
294. Bureau of Engraving and Printing, U.S. Department of the Treasury, Contact Us, http://www.moneyfactory.gov/contactus.html (last visited May 16, 2010) (containing a comment form);
295. Bureau of Industry and Security, U.S. Department of Commerce, Forms and Telephone Numbers You can Use to Contact BIS, http://www.bis.doc.gov/ forms/formslist.html (last visited May 16, 2010) (containing forms to contact BIS for a variety of purposes);
296. Bureau of Land Management, U.S. Department of the Interior, National Environmental Policy Act (NEPA), http://www.blm.gov/wo/st/en/info/ nepa.html (last visited May 16, 2010) (describing NEPA standards that require public hearings);
297. Bureau of Reclamation, U.S. Department of the Interior, We Welcome Your Comments, http://www.usbr.gov/main/comments.cfm (last visited May 16, 2010) (containing a comment form);
298. Delaware River Basin Commission, Public Access to Records and Information, http://www.state.nj.us/drbc/FOIA.htm (last visited May 16, 2010) (providing instructions for requesting documents from the agency);
299. ED.gov, U.S. Department of Education, Twitter: Hey There! usedgov is using Twitter, http://twitter.com/usedgov (last visited May 16, 2010) (inviting citizens to receive agency tweets);
300. EDPubs: Order Free U.S. Department of Education Publications, http://www.edpubs.gov/ (last visited May 16, 2010) (providing order forms for agency publications);
301. Federal Communications Commission, Welcome to the New Electronic Comment Filing System, http://fjallfoss.fcc.gov/ecfs/ (last visited May 16, 2010) (inviting public comments on the Web site and consumer complaint forms);
302. Federal Energy Regulatory Commission, For Citizens, http://www.ferc.gov/ for-citizens/for-citizens.asp (last visited May 16, 2010) (providing a portal for citizen involvement);
303. HHS.gov, U.S. Department of Health & Human Services, Get Involved, http://www.hhs.gov/open/getinvolved/ (last visited May 16, 2010) (offering various methods of participating);
304. HHS.gov/Open, U.S. Department of Health & Human Services, Share Your Ideas on Participation, http://www.hhs.gov/open/plan/plan/participantion.html (last visited May 16, 2010) (soliciting citizens' ideas and expertise);
305. Indian Affairs, U.S. Department of the Interior, Contact Us, http://www.bia.gov/ContactUs/index.htm (last visited May 16, 2010) (containing a comment form);
306. NASA, Connect with NASA on Social Networking Sites, http://www.nasa.gov/ connect/index.html (last visited May 16, 2010) (listing social networking sites for communicating with the administration);
307. National Institutes of Health, U.S. Department of Health & Human Services, Public Involvement with NIH, http://www.nih.gov/about/ publicinvolvement.htm (last visited May 16, 2010) (soliciting the public's involvement);
308. U.S. Department of State, Public Liaison and Intergovernmental Affairs, http://www.state.gov/r/pa/pl/ (last visited May 16, 2010) (stating a goal of "creat[ing] and coordinat[ing] opportunities between the Administration and the American public");
309. U.S. Immigration and Customs Enforcement, http://www.ice.gov/ (last visited May 16, 2010) (providing links to proposed rules and regulations);
310. United States Department of Agriculture, Contact Us, http://www.usda.gov/ wps/portal/!ut/p/-s.7-0-A/7-0-1OB?navtype=MA&navid=CONTACT-US (last visited May 16, 2010) (containing a link to an instructional pamphlet titled "How to Get Information from the United States Department of Agriculture");
311. United States Department of Justice, Contact Us, http://www.justice.gov/ contact-us.html (last visited May 16, 2010) (inviting citizen comment on agency activities);
312. United States Election Assistance Commission, Public Meetings and Hearings, http://www.eac.gov/News/meetings (last visited May 16, 2010) (listing schedule of public meetings and hearings);
313. United States Environmental Protection Agency, Office of Public Affairs, http://www.epa.gov/adminweb/opa/ (last visited May 16, 2010) (including links to the agency's social media sites).
314. The following Web pages had no direct and obvious links to public participation outlets. However, most did have "contact us" pages. See African Development Foundation, http://www.adf.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
315. Agricultural Research Service, United States Department of Agriculture, http://www.ars.usda.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
316. Board of Governors of the Federal Reserve System, http://www. federalreserve.gov/ (last visited May 17, 2010) (containing agency's address);
317. Bureau of International Labor Affairs (ILAB), United States Department of Labor, http://www.dol.gov/ilab (last visited May 17, 2010) (containing "Contact Us" link);
318. Bureau of Justice Statistics, http://ojp.usdoj.gov/bjs/ (last visited May 17, 2010) (containing "Contact Us" link);
319. Bureau of Labor Statistics, United States Department of Labor, http://www.bls.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
320. Bureau of the Public Debt, United States Department of the Treasury, http://www.publicdebt.treas.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
321. Center for Nutrition Policy and Promotion, United States Department of Agriculture, http://www.cnpp.usda.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
322. Centers for Disease Control and Prevention, http://www.cdc.gov/(last visited May 17, 2010) (containing "Contact CDC" link);
323. Centers for Medicare & Medicaid Services, U.S. Department of Health & Human Services, http://www.cms.hhs.gov/ (last visited May 17, 2010) (containing "Contact CMS" link);
324. Central Intelligence Agency, https://www.cia.gov/ (last visited May 17, 2010) (containing "Contact CIA" link);
325. Chief Financial Officers Council, http://www.cfoc.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
326. COMMERCE.gov, United States Department of Commerce, http://www.commerce. gov/ (last visited May 17, 2010) (containing "Contact Us" link);
327. Commissaries.com, http://www.commissaries.com/ (last visited May 17, 2010) (containing "Connect With DeCA" link);
328. Comptroller of the Currency Office, Administrator of National Banks, U.S. Department of the Treasury, http://www.occ.treas.gov/ (last visited May 17, 2010) (containing "Contact the OCC" link);
329. Congressional Budget Office, http://www.cbo.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
330. Defense Advanced Research Projects Agency, http://www.darpa.mil/ (last visited May 17, 2010) (containing "Contact DARPA" link);
331. Defense Finance and Accounting Service, http://www.dfas.mil/ (last visited May 17, 2010) (containing "Contact Us" link);
332. Defense Information Systems Agency, Department of Defense, http://www.disa.mil/ (last visited May 17, 2010) (containing "Contact Us" link);
333. Defense Logistics Agency, http://www.dla.mil/ (last visited May 17, 2010) (containing "Directory" link to contact information);
334. Defense Nuclear Facilities Safety Board, http://www.dnfsb.gov/ (last visited May 17, 2010) (containing "Contact" link);
335. Defense Security Cooperation Agency, http://www.dsca.mil/ (last visited May 20, 2010) (containing "Contact Us" link);
336. Defense Security Service, http://www.dss.mil/ (last visited May 17, 2010) (containing "Contact DSS" link);
337. Defense Threat Reduction Agency & US STRATCOM Center for Combating WMD, http://www.dtra.mil/ (last visited May 17, 2010) (containing "Contact Us" link);
338. Economics and Statistics Administration, http://www.esa.doc.gov/ (last visited May 17, 2010) (containing no contact information);
339. ED.gov, U.S. Department of Education, Office of English Language Acquisition, http://www2.ed.gov/about/offices/list/oela/ index.html?src=mr (last visited May 17, 2010) (containing a "Contact" link);
340. Export-Import Bank of the United States, http://www.exim.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
341. Farm Credit Administration, http://www.fca.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
342. Federal Aviation Administration, http://www.faa.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
343. Federal Bureau of Investigation, http://www.fbi.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
344. Federal Bureau of Prisons, U.S. Department of Justice, http://www.bop.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
345. Federal Deposit Insurance Corporation, http://www.fdic.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
346. Federal Election Commission, http://www.fec.gov/ (last visited May 17, 2010) (containing the Commission's address and telephone information);
347. Federal Emergency Management Agency, United States Department of Homeland Security, http://www.fema.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
348. Federal Housing Finance Agency, http://www.fhfa.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
349. Federal Maritime Commission, http://www.fmc.gov/ (last visited May 17, 2010) (containing "General Inquiries" link);
350. Federal Trade Commission, http://www.ftc.gov/(last visited May 17, 2010) (containing "Contact Us" link);
351. Health Resources and Services Administration, U.S. Department of Health & Human Services, http://www.hrsa.gov/ (last visited May 17, 2010) (containing "Contact Us" link on searching "HRSA Information Center");
352. Homeland Security, http://www.dhs.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
353. HUD.GOV, U.S. Department of Housing and Urban Development, http://www.hud.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
354. Indian Affairs, U.S. Department of the Interior, http://www.bia.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
355. Interagency Alternative Dispute Resolution Working Group, http://www.adr.gov/index.html (last visited May 17, 2010) (containing red suggestion box soliciting comments and suggestions);
356. International Trade Administration, http://trade.gov/ index.asp (last visited May 17, 2010) (containing "Contact ITA" link);
357. IRS.gov, http://www.irs.gov/ (last visited May 17, 2010) (containing "Contact IRS" link);
358. Library of Congress, http://www.loc.gov/index.html (last visited May 17, 2010) (containing "Contact" link);
359. National Institute of Food and Agriculture, United States Department of Agriculture, http://www.csrees.usda.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
360. National Mediation Board, http://www.nmb.gov/ (last visited May 17, 2010) (containing "Public Information" link to contact information);
361. National Oceanic and Atmospheric Administration, United States Department of Commerce, http://www.noaa.gov/ (last visited May 17, 2010) (containing "Contacts" link);
362. Office of Community Oriented Policing Services, U.S. Department of Justice, http://www.cops.usdoj.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
363. Office of Disability Employment Policy, Unites States Department of Labor, http://www.dol.gov/odep/ (last visited May 17, 2010) (containing "Contact Us" link);
364. Office of Science, U.S. Department of Energy, Low Dose Radiation Research Program, http://lowdose.energy.gov/national-labs.aspx (last visited May 17, 2010) (containing "Contact Us" link);
365. Research and Innovative Technology Administration, Bureau of Transportation Statistics, http://www.bts.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
366. Transportation Security Administration, http://www.tsa.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
367. U.S. Chemical Safety Board, http://www.csb.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
368. U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, http://www.uscis.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
369. U.S. Commodity Futures Trading Commission, http://www.cftc.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
370. U.S. Consumer Product Safety Commission, http://www.cpsc.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
371. U.S. Customs and Border Protection, http://www.cbp.gov/ (last visited May 17, 2010) (containing "Contacts" link);
372. U.S. Department of Energy, http://www.energy.gov (last visited May 17, 2010) (containing "Contact Us" link);
373. U.S. Department of State, http://www.state.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
374. U.S. Department of the Interior, http://www.doi.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
375. U.S. Department of the Treasury, http://www.ustreas.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
376. U.S. Drug Enforcement Administration, http://www.usdoj.gov/dea/ (last visited May 17, 2010) (containing "Contact Us" link);
377. U.S. Equal Employment Opportunity Commission, http://www.eeoc.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
378. U.S. Fish & Wildlife Service, http://www.fws.gov/ (last visited May 17, 2010) (containing "Find Us" link);
379. U.S. Food and Drug Administration, U.S. Department of Health & Human Services, http://www.fda.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
380. U.S. Forest Service, http://www.fs.fed.us/ (last visited May 17, 2010) (containing "Contact Us" link);
381. U.S. General Services Administration, http://www.gsa.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
382. U.S. Government Accountability Office, http://www.gao.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
383. U.S. Government Printing Office, http://www.gpo.gov/ (last visited May 17, 2010) (containing "Contact" link);
384. U.S. Securities and Exchange Commission, http://www.sec.gov/ (last visited May 17, 2010) (containing "Contact" link);
385. U.S. Small Business Administration, http://www.sba.gov/ (last visited May 17, 2010) (containing "Contact" and "Contact SBA" links);
386. U.S. Social Security Administration, Social Security Online, http://www.ssa.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
387. United States Access Board, http://www.access-board.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
388. United States Agency for International Development, http://www.usaid.gov/ (last visited May 17, 2010) (containing "Contact USAID" link);
389. United States Coast Guard, U.S. Department of Homeland Security, http://www.uscg.mil/ (last visited May 17, 2010) (containing "Contact Us" link);
390. United States Department of Defense, http://www.defense.gov/(last visited May 17, 2010) (containing "Contact Us" link);
391. United States Department of Justice, http://www.usdoj.gov/ (last visited May 17, 2010) (containing "Contact" link);
392. United States Department of Labor, http://www.dol.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
393. United States Department of Transportation, http://www.dot.gov/ (last visited May 17, 2010) (containing Department's address and telephone information);
394. United States Department of Veterans Affairs, http://www.va.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
395. United States Institute of Peace, http://www.usip.org/ (last visited May 17, 2010) (containing "Contact Us" link);
396. United States International Trade Commission, http://www.usitc.gov/ (last visited May 17, 2010) (containing "Contact Us" link);
397. United States Trade and Development Agency, http://www.ustda.gov/ (last visited May 17, 2010) (containing "Contact Us" link).
398. CARMEN SIRIANNI, INVESTING IN DEMOCRACY: ENGAGING CITIZENS IN COLLABORATIVE GOVERNANCE (2009).
399. Id. at 166.
400. Id.
401. See also XAVIER DE SOUZA BRIGGS, DEMOCRACY AS PROBLEM SOLVING: CIVIC CAPACITY IN COMMUNITIES ACROSS THE GLOBE (2008).
402. Markell, supra note 10, at 8.
403. Cary Coglianese, Citizen Participation in Rulemaking: Past, Present, and Future, 55 DUKE L.J. 943 (2006).
404. Id. at 950.
405. Id. at 956.
406. Id. at 951
407. ("Of those comments submitted by citizens, most were only the briefest of letters. Often they were handwritten notes; sometimes they expressed flippant, derogatory remarks toward the agency; and sometimes they were obviously cribbed from a grassroots group's form letter. Business submissions were consistently longer and more sophisticated . . . ."). Reporting on more recent e-mailed comments,
408. he observes that most "remain quite unsophisticated, if not duplicative. According to one recent study of about 500,000 comments submitted on an especially controversial EPA rule, less than 1 percent of these comments reportedly had anything original to say."
409. Id. at 958-59 (citations omitted).
410. Id. at 967 (observing that citizens "can simply free ride on the comments submitted by organized interest groups") (citation omitted).
411. Robert J. MacCoun, Voice, Control, and Belonging: The Double-Edged Sword of Procedural Fairness, 1 ANN. REV. L. & Soc. Sci. 171 (2005), available at http://arjournals.annualreviews.org/doi/pdf/10.1146/annurev.lawsocsci. 1.041604.1159 58.
412. See generally BETH SIMONE NOVECK, WIKI GOVERNMENT: HOW TECHNOLOGY CAN MAKE GOVERNMENT BETTER, DEMOCRACY STRONGER, AND CITIZENS MORE POWERFUL (2009). Previously a professor at New York University School of Law and Director of the Institute for Information Law and Policy, she now serves in the Office of Science and Technology Policy as Deputy Chief Technology Officer.
413. Id. at 138-45.
414. Id. at 3-24.
415. Id. at 142.
416. Id. at 171 (arguing for careful design of policy wikis, citizen juries, online brainstorming, and other innovations). See also Beth Simone Noveck, Designing Deliberative Democracy in Cyberspace: The Role of the Cyber-Lawyer, 9 B.U. J. Sci. & TECH. L. 1 (2003);
417. Beth Simone Noveck, The Future of Citizen Participation in the Electronic State, 1 I/S: J.L. POL'Y FOR INFO. SOC'Y 1 (2005).
418. Steven J. Balla, Between Commenting and Negotiation: The Contours of Public Participation in Agency Rulemaking, 1 I/S: J.L. POL'Y FOR INFO. SOC'Y 59, 61 (2005).
419. Id. at 62.
420. Id. at 80 (observing that "[i]n general, it was not uncommon for the DOT to turn to multiple forms of interaction and deliberation in specific cases where stakeholder interest and conflict were particularly pronounced").
421. Id. at 81. While it is common knowledge such contacts occur, the research illustrates the gap in scholarly discussion and empirical research.
422. For an example of a policy pursuing broader engagement, see National Park Service, Director's Order #75A: Civic Engagement and Public Involvement (Aug. 30, 2007), http://www.nps.gov/policy/DOrders/75A.htm, providing in part, This philosophy means that we do more than meet the minimum legal requirements for public involvement in our decisions and activities. It means a regular, natural and sustained level of interaction with people both from within and outside the NPS. This, in turn, will enhance our ability to achieve our mission, which is conserving park resources unimpaired for the enjoyment of present and future generations.
423. Id. at Part I.
424. Transparency and Open Government: Memorandum for the Heads of Executive Departments and Agencies, 74 Fed. Reg. 4685 (Jan. 26, 2009).
425. See Recovery.gov, http://www.recovery.gov (last visited Mar. 1, 2010).
426. See USAspending.gov, http://www.usaspending.gov (last visited Mar. 1, 2010).
427. See Apps.gov, http://www.apps.gov (last visited Mar. 1, 2010).
428. See regulations.gov/EXCHANGE, http://www.regulations.gov/exchange/ (last visited Mar. 1, 2010).
429. See CA.gov, State of California, Data, http://www.ca.gov/data/ default.html (last visited May 18, 2010).
430. See Data.gov, State/Local/Tribal Data Sites, http://www.data.gov/ statedatasites (last visited May 18, 2010), showing state open data plans in California, Maine, Massachusetts, North Dakota, Utah, and the District of Columbia.
431. See generally Homeland Security, Quadrennial Homeland Security Review (QHSR), http://www.dhs.gov/xabout/gc-1208534155450.shtm (last visited May 28, 2010) (containing links to NAT'L ACADEMY OF PUB. ADMIN., THE NATIONAL DIALOGUE OF THE QUADRENNIAL HOMELAND SECURITY REVIEW (QHSR) Report to Congress on February 1, 2010, and archives of the the three-stage of dialogue process).
432. Transparency and Open Government: Memorandum for the Heads of Executive Departments and Agencies, 74 Fed. Reg. 4685 (Jan. 26, 2009).
433. The White House, Office of Science and Technology Policy, http://www.whitehouse.gov/administration/eop/ostp (Wrap-Up of the Open Government Brainstorming: Collaboration, posted by Beth Noveck & Michael Baldwin on June 16, 2009 at 7:37 PM EDT) (on file with author) [hereinafter OSTP Blog].
434. See National Academy of Public Administration, Open Government Dialog, http://opengov.ideascale.com/ (last visited May 18, 2010).
435. See OSTP Blog, supra note 176, (Wrap-Up of the Open Government Brainstorming: Collaboration, posted by Beth Noveck & Michael Baldwin on June 16, 2009 at 7:37 PM EDT).
436. Brian Robinson, Open Government Initiative Provides Plenty of Lessons FED. COMPUTER WK., July 15, 2009, http://fcw.com/articles/2009/07/20/ feat-lena-trudeau-qanda.aspx.
437. Id. Complete files of all the entries during the three phases of the process were freely available for download by following a link at http://mixedink.com/ opengov/ to a zip file at
438. http://blog.ostp.gov/2009/08/07/data-from-public-consultationon-open- government/ (last visited Mar. 31, 2010) (on file with author).
439. See OSTP Blog, supra note 176, (Wrap-Up of the Open Government Brainstorming: Collaboration, posted by Beth Noveck & Michael Baldwin on June 16, 2009 at 7:37 PM EDT).
440. Id.
441. See Bev Goodwin, The White House, The White House Blog: Cookies Anyone (the http kind)?, http://www.whitehouse.gov/blog/2009/07/24/ cookies-anyone-http-kind, July 24, 2009, 2:07 p.m. EDT.
442. See Norm Eisen, The White House, Open Government Institute, More than 250,000 White House Visitor Records Now Online, http://www.whitehouse.gov/ blog/2010/03/26/more-than-250000-white-house-visitor-records-now-online, Mar. 26, 2010, 2:41 p.m. EDT.
443. See Executive Office of the President of the United States, Open Government Directive, Phase Three: Drafting, http://mixedink.com/opengov/ (last visited May 18, 2010).
444. See The White House, Open Government Initiative, Open Government Directive, http://www.whitehouse.gov/open/documents/open-government-directive (last visited Apr. 20, 2010).
445. See The White House, Open Government Initiative, Around the Government, http://www.whitehouse.gov/open/around (last visited May 18, 2010). This Web site has links to each agency's Open Government Plan.
446. See Council on Environmental Quality, http://www.whitehouse.gov/ administration/eop/ceq (last visited May 18, 2010); Ed.gov, U.S. Department of Education, Open Government Initiative at ED,
447. http://www2.ed.gov/about/open.html (last visited May 18, 2010);
448. HHS.gov/OPEN, U.S. Department of Health & Human Services, (last visited May 18, 2010);
449. NASA (United States National Aeronautics & Space Administration), Open Government at NASA, http://www.nasa.gov/open/ (last visited May 18, 2010);
450. Office of National Drug Control Policy, http://www.whitehousedrugpolicy. gov/ (last visited May 18, 2010);
451. Office of the United States Trade Representative, http://www.ustr.gov/ (last visited May 18, 2010);
452. Social Security Administration, The Open Government Initiative, http://www.ssa.gov/ open/ (last visited May 18, 2010);
453. The White House, Office of Science and Technology Policy, http://www.whitehouse.gov/open/around/eop/ostp (last visited May 18, 2010);
454. The White House, Open Government Initiative, United States Office of Management and Budget: Open Government, http://www.whitehouse.gov/open/around/ eop/omb (last visited May 18, 2010);
455. U.S. Department of Energy, Open Government Initiative, http://www.energy.gov/open/ (last visited May 18, 2010);
456. Homeland Security, Open Government, http://www.dhs.gov/xabout/open- government.shtm (last visited May 18, 2010);
457. U.S. Department of State, Open Government Initiative, http://www.state.gov/open/ (last visited May 18, 2010);
458. U.S. General Services Administration, GSA's Open Government Initiatives, http://www.gsa.gov/Portal/gsa/ ep/contentView. do?contentType=GSA- OVERVIEW&contentId=29010 (last visited May 18, 2010);
459. U.S. Small Business Administration, Open Government, http://www.sba.gov/ open/ (last visited May 18, 2010);
460. United States Department of Agriculture, http://www.usda.gov/open/ (last visited May 18, 2010);
461. United States Department of Commerce, http://open.commerce.gov/ (last visited May 18, 2010);
462. United States Department of Defense, DoD Open Government, http://open.dodlive.mil/ open-government-plan/ (last visited May 18, 2010);
463. United States Department of Housing & Urban Development, http://www.hud.gov/ (last visited May 18, 2010);
464. United States Department of Justice, http://www.justice.gov/open/ (last visited May 18, 2010);
465. United States Department of Labor, http://www.dol.gov/open/ (last visited May 18, 2010);
466. U.S. Department of the Interior, Open Government Initiative, http://www.doi.gov/open/ (last visited May 18, 2010);
467. United States Department of the Treasury, Open Government Initiative, http://www.treasury.gov/open/ (last visited May 18, 2010);
468. United States Department of Transportation, Open Government Initiative, http://www.dot.gov/open/ (last visited May 18, 2010);
469. United States Department of Veterans Affairs, http://www4.va.gov/open/ (last visited May 18, 2010);
470. United States Environmental Protection Agency, http://www.epa.gov/open/ (last visited May 18, 2010);
471. United States National Science Foundation, Open Government Directive, http://www.nsf.gov/open/ (last visited May 18, 2010);
472. United States Nuclear Regulatory Commission, The NRC Approach to Open Government, http://www.nrc.gov/open/ (last visited May 18, 2010);
473. United States Office of Personnel Management, http://www.opm.gov/open/ (last visited May 18, 2010);
474. USAID (United States Agency for International Development), http://www.usaid.gov/ open/ (last visited May 18, 2010).
475. Cass R. Sunstein, Administrator, Office of Information and Regulatory Affairs, Information Collection Under the Paperwork Reduction Act (Apr. 7, 2010), available at http://www.whitehouse.gov/omb/assets/inforeg/PRAPrimer- 04072010.pdf.
476. Sunstein states: It is worth emphasizing that facts or opinions obtained in connection with public meetings do not count as "information." This "public meeting" exception allows agencies to engage with the public on the Internet so long as the engagement is the functional equivalent of a public meeting (i.e., not a survey). In addition, it is important to underline that general solicitations, such as Federal Register notices, do not trigger the PRA. It follows that agencies may offer the public opportunities to provide general comments on discussion topics through the Internet. More generally, agencies may use social media and web-based technologies in a variety of specific ways without triggering the PRA.
477. Id. at 3.
478. HIBBING & THEISS-MORSE, supra note 10.
479. Michael A. Neblo et al., Who Wants to Deliberate - And Why? (Harvard Kennedy Sch., Faculty Research Working Paper Series, Paper No. RWP09027, 2009), available at http://web.hks.harvard.edu/publications/workingpapers/ citation.aspx?PubId=6772.
480. ARCHON FUNG ET AL., FULL DISCLOSURE: THE PERILS AND PROMISE OF TRANSPARENCY 151-69 (2007).
481. Id. at 141-45.
482. NOVECK, supra note 157, at 70-103.
483. See generally HM GOVERNMENT, PUTTING THE FRONTLINE FIRST: SMARTER GOVERNMENT (2009), available at http://www.hmg.gov.uk/frontlinefirst.aspx. The report finds that citizens want accountability, transparency, and more of a say in shaping public services.
484. See generally GOV'T 2.0 TASKFORCE DRAFT REPORT 2009, ENGAGE: GETTING ON WITH GOVERNMENT 2.0 (2009), available at http://gov2.net.au/files/2009/ 12/Draft-Government-2-0-Report-release.pdf. It proposes a "Declaration on Open Government" that finds that public information is a national resource; recommends that government use technology to increase collaboration in making policy and providing services; that government be more consultative, participatory and transparent; and that public servants use online engagement.
485. Id. at xvi.
486. See generally Europe's Information Society, ICT for Government and Public Services, http://ec.europa.eu/information-society/activities/egovernment/ index-en.htm (last visited Mar. 31, 2010);
487. see also Ministerial Declaration on eGovernment, approved unanimously in Malmö, Sweden on 18 November 2009, available at http://ec.europa.eu/ information-society/activities/egovernment/ conferences/malmo-2009/press/ ministerial-declaration-on-egovernment.pdf;
488. Smarter, Faster, Better eGovernment: 8th Benchmark Measurement: 8th Benchmark Measurement, Prepared by Capgemini, Rand Europe, IDC, Sogeti, and DTi for European Commission, Directorate General for Information Society and Media (November 2009), available at http://ec.europa.eu/information-society/eeurope/ i2010/ docs/benchmarking/egov-benchmark-2009.pdf.
489. Transparency and Open Government: Memorandum for the Heads of Executive Departments and Agencies, 74 Fed. Reg. 4685 (Jan. 26, 2009).
490. 5 U.S.C. §§ 551-559, 701-706 (2006).
491. 295 U.S. 495 (1935).
492. 5 U.S.C. app. 2 §§ 1-16 (2006).
493. 5 U.S.C. §§ 552, 552b.
494. Id. §§ 571-584 (2006).
495. Id.
496. 44 U.S.C. §§ 3601-3606 (2006).
497. Unlike many other administrative laws, it makes express reference to collaboration and dialogue in 44 U.S.C.S. § 3602 (LexisNexis Supp. 2009): (f) Subject to requirements of this chapter [44 USCS §§ 3601 et seq.], the Administrator shall assist the Director by performing electronic Government functions as follows: (9) Sponsor ongoing dialogue that(A) shall be conducted among Federal, State, local, and tribal government leaders on electronic Government in the executive, legislative, and judicial branches, as well as leaders in the private and nonprofit sectors, to encourage collaboration and enhance understanding of best practices and innovative approaches in acquiring, using, and managing information resources; (B) is intended to improve the performance of governments in collaborating on the use of information technology to improve the delivery of Government information and services; and (C) may include(i) development of innovative models(I) for electronic Government management and Government information technology contracts; and (II) that may be developed through focused discussions or using separately sponsored research; (ii) identification of opportunities for public-private collaboration in using Internet-based technology to increase the efficiency of Government-to-business transactions; (iii) identification of mechanisms for providing incentives to program managers and other Government employees to develop and implement innovative uses of information technologies; and (iv) identification of opportunities for public, private, and intergovernmental collaboration in addressing the disparities in access to the Internet and information technology.
498. This might even be termed invasive transparency. Google Earth, online court filings, www.regulations.gov, and other applications are only the beginning.
499. 5 U.S.C. § 552 (2006); see Markell, supra note 10, at 7-12. Markell describes "dramatic developments in the world of technology" and how they "operate to facilitate government openness and opportunities for civic engagement." Id. at 8. Professor Markell also discusses the relationship between these developments and heightened accountability. See generally id.
500. Margaret Ward, Public Fuss in a Private Forum, 2 HARV. NEGOT. L. REV. 217, 217-18 (1997) ("[The ADRA] required each federal agency to adopt an ADR policy, appoint an ADR specialist, develop an ADR training program, . . . review existing agency agreements for possible incorporation of ADR clauses [and] . . . examine the potential for alternatives in relation to . . . formal and informal adjudications, rulemakings, enforcement actions, license and permit issuance and revocation, contract administration, and enforcement and defense of litigation.").
501. For a variety of resources describing federal agency ADR use, see Interagency Alternative Dispute Resolution Working Group, http://www.adr.gov/ (last visited Mar. 31, 2010).
502. See, e.g., David L. Markell, Understanding Citizen Perspectives on Government Decision Making Processes as a Way ta Improve the Administrative State, 36 ENVTL. L. 651 (2006);
503. David L. Markell & Tom R. Tyler, Using Empirical Research to Design Government Citizen Participation Processes: A Case Study of Citizens' Roles in Environmental Compliance and Enforcement, 57 KAN. L. REV. 1 (2008);
504. David L. Markell & Tom R. Tyler, The Public Regulation of Land Use Decisions: Criteria for Evaluating Alternative Procedures, J. EMPIRICAL LEGAL STUD. (forthcoming 2010), available at http://ssrn.com/abstract= 1475378.
505. See generally National Coalition for Dialog Sc Deliberation, The Seven Core Principles for Public Engagement, http://www.thataway.org/?page-id= 1442 (last visited Mar. 31, 2010).
506. See generally International Association for Public Participation, IAP2 Core Values: Core Values for the Practice of Public Participation, http://www.iap2.org/displaycommon.cfm?an=4 (last visited Apr. 1, 2010).
507. See AMERICA SPEAKS ET AL., WORKING TOGETHER TO STRENGTHEN OUR NATION'S DEMOCRACY: TEN RECOMMENDATIONS (2009), available at http://www.everyday- democracy.org/en/Article.1040.aspx (a final report on the August 2009 Strengthening Our Nation's Democracy).
508. ELINOR OSTROM, UNDERSTANDING INSTITUTIONAL DIVERSITY (2005);
509. see also Lisa Blomgren Bingham, Designing Justice: Legal Institutions and Other Systems for Managing Conflict, 24 OHIO ST. J. ON DISP. RESOL. 1 (2008) (applying institutional analysis and development framework to dispute system design and surveying the relation of designs to various definitions of justice);
510. Douglas NeJaime, When New Governance Fails, 70 OHIO ST. L.J. 323 (2009) (arguing the need to recognize the contextuality of new governance and reframe it as a contingent model of cause lawyering, but also applying design concepts by arguing that success depends on relationships among the parties, the substantive issues at stake, and the role of lawyers).