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2010 Wis. L. Rev. 297 (2010)
The Next Generation of Administrative Law: Building the Legal Infrastructure for Collaborative Governance

handle is hein.journals/wlr2010 and id is 305 raw text is: THE NEXT GENERATION OF ADMINISTRATIVE LAW: BUILDING THE LEGAL INFRASTRUCTURE FOR COLLABORATIVE GOVERNANCE LISA BLOMGREN BINGHAM* This Article describes the map of statutory administrative law through those cross-cutting statutes that apply generally to all federal agencies. It argues that each major statute represents a balance among five fundamental values in the relationship between the government and the governed, a balance struck by Congress in a particular historical context and moment in time. These values are accountability, efficiency, transparency, participation, and collaboration. Second, it surveys the current law and practice of both in-person and technology-aided public participation , including recent developments through the Open Government Initiative, Open Government Dialogue, and Open Government Directive. Third, it argues that at this moment in history-in light of dramatic technology-driven changes in transparency-we need to reassess the balance among our five fundamental values to foster more participation and collaboration. In order to adjust those values to foster collaborative governance, it proposes to broaden agency authority to innovate through a Collaborative Governance Act (CGA) that defines public participation to include an increasingly rich variety of deliberative and participatory democratic practices. It proposes to model the CGA in structure on the Administrative Dispute Resolution Act by providing for an agency specialist, broad agency discretion to innovate in the use of participatory processes, and encouraging innovation by limiting judicial review. Introduction .....................................298 I. Collaborative Governance and Administrative Law: Flatland .303 A. The APA: Rulemaking and Adjudication ....... ....305 * Keller-Runden Professor of Public Service, Indiana University School of Public and Environmental Affairs, Bloomington, Indiana. I am grateful to the organizers of the Transatlantic Conference on New Governance and the Transformation of Law at the University of Wisconsin and all of the participants for a rich dialogue. I wish particularly to thank Louise Trubek, William Simon, Wendy Bach, Edward Rubin, Amy Cohen, and Jason Solomon for helpful discussions. I thank Professor David L. Markell for his very helpful comments on the manuscript. I learned much from my colleagues Carmen Sirianni and Kirk Emerson on the Obama Campaign Urban Policy Committee Collaborative Governance Cluster; from Patricia Bonner and other members of the Federal Interagency ADR Working Group; and from Joseph Goldman and John Kamensky and other members of Strengthening Our Nation's Democracy. I am also grateful for the able research assistance of Christina M. Clark and Nathaniel Holton, both of whom are candidates for the joint JD and MPA degrees at Indiana University Maurer School of Law and School of Public and Environmental Affairs. Finally, I thank Terry Amsler for his ongoing support of this work. This work was supported in part by a grant from the Deliberative Democracy Consortium. Any errors are my own.

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