Agencies, not Congress, are the primary lawmakers in the American federal legal system. By law, the public has a right to participate in the making of agency rules. With the passage of the E-Government Act, administrative agencies are now required to use information and communication technologies to promulgate their rulemakings and to afford the public the opportunity to participate via the Internet. As currently envisioned, however, the move from rulemaking to electronic rulemaking will not realize the opportunity to improve participation to the full extent. Instead, the design of the screens through which people will interact with government are likely to make public participation less effective for citizens and produce comments that are less manageable for regulators. This Article argues that electronic rulemaking should focus on developing software and communicative methods embedded in that software to enable participative practices. To translate the right of participation into the practices of participation through the computer screen requires designing, not for individuals to communicate with government, but for participants to see themselves as part of a community engaged in rulemaking. By conveying a sense of the community of practice, the screen can strengthen engagement and promote participation in the comment process over time, rather than opening the floodgates to one stop "notice and spam." This Article supports this argument with proposed innovations - both technological and methodological - to improve participatory practices in electronic rulemaking.
1 ISJLP 1 (2004-2005)