Reforming the Administrative Procedure Act: Democracy Index Rulemaking

This Essay argues that the current regime of administrative law should be changed by creating legal incentives for agencies to involve the public in the rulemaking process via "democracy index rulemaking." Democracy index rulemaking would create a clear incentive for agencies to involve the public by requiring that the more participation that occurred during the rulemaking process, the more deference that such an agency rule would receive in court. An agency could receive this deference by using normal notice and comment procedures and receiving a large number of relevant and non-repetitive comments on a proposed rule, with the precise amount of deference then tied to the number of comments received. Alternatively, the agency could use a special procedure, called deliberative notice and comment, which would involve jury deliberations (involving a set of juries composed of stakeholders as well as of members of the general public) regarding the proposed administrative rule. An agency using this special democratic process would guarantee itself deference. Either way, democracy index rulemaking would create a system that would encourage public participation, with all of its virtues, while at the same time avoiding many of the negatives of other regimes of public participation.