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73 Admin. L. Rev. 609 (2021)
Deliberative Rulemaking: An Empirical Study of Participation in Three Agency Programs

handle is hein.journals/admin73 and id is 653 raw text is: DELIBERATIVE RULEMAKING: AN
EMPIRICAL STUDY OF PARTICIPATION IN
THREE AGENCY PROGRAMS
WENDY WAGNER,* WILLIAM WEST,** THOMAS MCGARITY,*** AND
LISA PETERS****
Democratic deliberation and reason-giving arefundamental to ensuring the legitimacy
of the administrative process, yet whether and how agencies incorporate these values into the
development of nues is hotly contested. Some maintain that the public notice-and-comment
required by the Administrative Procedure Act (APA) is largely window-dressing for a
preordained outcome. Others take a more generous view, arguing that agency rules are informed
by public comment, even while acknowledging that participation is less-than-inclusive.
Our empirical study of rulemakings in three areas from the early 1980s to 2009
(N=125 rules) finds that agencies took attentive stakeholders seriously and engaged with
them in innovative ways that went well byond the APA's minimum requirements. Each
of the three agencies provided opportunities for dialogue with interested parties throughout
the rulemaking process. 7hey did so, however, in very diferent ways that have important
normative implications. The deliberative processes developed by the Environmental
* Richard Dale Endowed Chair, University of Texas School of Law. Contact:
WWagner@law.utexas.edu. This study was supported by NSF GRANT SES-1023571 and a
University of Texas Special Research Grant. We are grateful to Mary Jane Angelo, Stuart
Benjamin, Neil Eisner, Blake Emerson, Adam Finkel, Chris Havasy, Cornelius Kerwin, Ron
Levin, David Michaels, Nicholas Parrillo, Dick Pierce, Connor Raso, Glen Staszewski, and to
the participants at the Empirical Research on Administrative Law Conference hosted by
Susan and Jason Yackee at Wisconsin Law School and the Power in the Administrative
State Roundtable hosted by Brian Feinstein for helpful comments on an earlier version of
this article. We also thank Daniel Lyons and Matt Spitzer for illuminating conversations
about our general project. Finally, we are especially grateful to our many able research
assistants for their invaluable help in collecting the data for this study.
** Professor and Sara Lindsey Chair, The Bush School of Government & Public Service,
Texas A&M University
*** Joe R. and Teresa Lozano Long Endowed Chair in Administrative Law, University
of Texas School of Law
**** Reference and Scholarly Communications Librarian, Case Western Reserve
University School of Law

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