Michael Herz, Microsoft/LAPA Fellow; Cardozo School of Law

Democracy Deficit or Democracy Surplus? Agency Rulemaking in the Electronic Age

Mon, 02/13/2012
4:30 - 6:00 PM, Kerstetter Room, Marx Hall
Event Category: 

We hope you will join us for an upcoming LAPA Seminar with Michael Herz, Microsoft/LAPA Fellow and Arthur Kaplan Professor of Law and Co-Director of the Floersheimer Center for Constitutional Democracy at the Benjamin N. Cardozo School of Law, to discuss "Democracy Deficit or Democracy Surplus? Agency Rulemaking in the Electronic Age."  The commentator is Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science and Director of the Program on Regulation at the University of Pennsylvania Law School.

As always, the LAPA format asks that seminar participants familiarize themselves with the paper in advance. The commentator will open the session by summarizing the main themes in the paper and presenting some topics for discussion. The author then has the right of first response before we open to the floor for questions. The seminar will end with a brief reception in the Kerstetter Room, giving everyone a chance to mingle and meet.  The paper will be available soon.

Abstract:  Among the many places the Internet and other new technologies have made themselves felt over the last decade is in the operation of administrative agencies. For the most part, agencies' assigned tasks, statutory mandates, and governmental functions have not changed, but the ways that agencies go about those tasks, pursue those mandates, and fill those functions are being rapidly altered. Performing a familiar task in a new way – with a new technology – can change the perception and nature of that task. This paper, which is part of larger project on agencies and technology, focuses on changes in notice-and-comment rulemaking now that it has become an on-line process. This shift has been trumpeted a democratizing mechanism that will engage the lay public in a process that has historically been an insiders' game, one of dubious democratic legitimacy. But it is not clear that this vision is, or will ever be, practically achievable or normatively desirable. Without reaching a firm bottom line, the paper explores various strengths and weaknesses of on-line rulemaking and how it fits within broader understandings of agency rulemaking in a democracy.

Michael Herz, the current Microsoft Fellow in the Program in Law and Public Affairs, is the Arthur Kaplan Professor of Law and Co-Director of the Floersheimer Center for Constitutional Democracy at the Benjamin N. Cardozo School of Law, Yeshiva University, where he teaches primarily in the areas of administrative, environmental, and constitutional law. He was Cardozo’s Vice Dean from 1996-2000 and 2006-2009. A graduate of Swarthmore College and the University of Chicago Law School, Professor Herz served as law clerk to Chief Judge Levin Campbell of the U.S. Court of Appeals for the First Circuit and to Justice Byron R. White of the United States Supreme Court. He joined the Cardozo faculty in 1988 after three years as an attorney with the Environmental Defense Fund in New York City. He has twice been a Visiting Professor at the NYU School of Law and has also taught at Columbia Law School and the Woodrow Wilson School. Professor Herz is a public member of the Administrative Conference of the United States and the current chair of the ABA's Section of Administrative Law and Regulatory Practice.  

Cary Coglianese specializes in the study of regulation and regulatory processes, with a particular emphasis on the empirical evaluation of alternative regulatory strategies and the role of conflict and cooperation in business-government relations. His recent books include: Import Safety: Regulatory Governance in the Global Economy (2009) (with Adam Finkel and David Zaring); Regulation and Regulatory Processes (2007) (with Robert A. Kagan); and Leveraging the Private Sector: Management-Based Strategies for Improving Environmental Performance (2006) (with Jennifer Nash). He has also recently written on climate change policy, public participation and transparency in federal rulemaking, and voluntary environmental programs. Coglianese was a founding editor of the peer-reviewed journal Regulation & Governance.