Notice & Comment Versions 1.2 and 2.0

Federal administrative agencies have long permitted the public to provide comments on proposed regulations after having received notice via the Federal Register. In recent years, the agencies have accepted comments via the internet, a development that we might call Notice & Comment Version 1.1. It's a small step but a useful one.

Today, the Washington Post reports that the Patent & Trademark Office will accept comments on patent applications (formerly walled off pre-approval for fear of revealing proprietary information). What makes the PTO program distinctive is that individual commenters will receive reliability rankings based on how useful the information they provide turns out to be over time. The story expressly compares the system to Wikipedia and customer ratings systems like those used by eBay.

Nonetheless, I would call the PTO project Version 1.2 rather than 2.0 because it does not cede any meaningful control from the agency personnel to the interested public. It views comments in much the same way as the Notice & Comment process has always viewed them --- as a means of better informing the agency's expert staff about potential problems with various courses of action. For the PTO those issues are largely going to be technical, but for other agencies they will include political issues as well. Indeed, even for the PTO, we can envision the comment process as yielding info re political issues, such as the patentability of human genes, etc.

What would Notice & Comment Version 2.0 look like? I have in mind some means of aggregating and distilling public knowledge in which the wisdom of crowds plays more than a merely advisory role for the agency. I don't think agencies could simply cede control to the public entirely, for fear of sabotage. The Google page-rank system is vulnerable to "google-bombing" (Google "Santorum" if you don't know what I'm talking about) and Wikipedia can be victimized by vandalism (Check out the Stephen Colbert-inspired vandalism on the entry for "Elephant" by viewing the history tab for late January of this year). For agency rulemaking, where billions of dollars are at stake, we would have to worry about corporations and their agents trying to game the comment system. But of course, "agency capture" by regulated entities is already a problem, and the increased transparency and decentralization that going to a genuinely user-based system of rulemaking would yield might be a way to combat such capture. I myself haven't figured out just how to do this, but it strikes me as a pressing question for administrative law and policy, one not unconnected to what Chuck Sabel, Bill Simon, I, and others call "democratic experimentalism."