Edited by Padideh Ala’i and Robert G. Vaughn
Chapter 12: Transparency in policymaking — the (mostly) laudable example of the U.S. rulemaking system
In a recent essay, Professor Michael Herz took note of over a dozen recent books proclaiming that different foodstuffs (salt, pepper, sugar, coffee, tea, bananas, beer), peoples (the Irish), events, (the 1960 Olympics), and scientific developments (five mathematical equations) have “changed the world.” As he pointed out, although this label has also been applied to electronic rulemaking (or “e-rulemaking” for short), most commentators at a recent American Bar Association conference do not think the world has changed yet. E-rulemaking (sometimes called “rulemaking 2.0”) is itself an enhancement of “notice-and-comment rulemaking,” the U.S. system of rulemaking codified in the 1946 U.S. Administrative Procedure Act (APA) which was famously called “one of the greatest inventions of modern government” by the American Administrative Law Treatise writer, Kenneth Culp Davis. Judging by its spread around the world, notice-and-comment rulemaking may deserve that encomium. And with the enhancement of the Internet platform, U.S. rulemaking is certainly quite transparent. In many respects, the actions of the Executive Branch agencies are more transparent and open than the actions of the Congress or the Executive Office of the President. Although the process of passing laws normally involves publicly available bills and amendments and public hearings (albeit with selected invited participants), these attributes are not always required and some legislation is passed after minimal and opaque proceedings.
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