Introduction: Citizen Lawmaking Online
Citizen lawmaking seems ideally suited to today’s Web. Government social media and online deliberation resources, coupled with widespread access to broadband in many nations, and much improved Internet access to laws, combine to furnish citizens with abundant means for participating in the creation of laws online. The category of information and communication technologies (ICTs) that enable online citizen involvement in lawmaking has many names, including eConsultation, eDemocracy, eParliament, eParticipation, eRulemaking, and Dr. Beth Simone Noveck’s “collaborative democracy”.
In the U.S., citizens in many jurisdictions already have the opportunity to participate in eRulemaking — the promulgation of new or amended administrative regulations through notice-and-comment rulemaking processes operated on online platforms, such as the U.S. federal Regulations.gov system, and experimental systems such as the University of Albany’s DeER (Deliberative E-Rulemaking) Project, Princeton CITP’s FedThread system, Cornell’s Regulation Room, and WestEd’s GovPulse. Before long, U.S. citizens are likely to engage in lawmaking respecting statutes and constitutional amendments via initiatives, referenda, or ballot propositions administered online.
The Key Question
Given that today’s ICT environment seems a perfect match for citizen involvement in lawmaking, it’s natural that a great deal of eGovernment research and development activity concerns creating and improving eParticipation systems. Designers of eParticipation systems consider a host of factors when building such systems. This post will address just one of these factors: When nonlawyer citizens engage in lawmaking online, what do they need to know about the laws they are making?
How to Determine What Information Is Needed?
One approach to answering this question is to consider a closely analogous query: What information about proposed laws is needed by governmental lawmakers — such as legislators, and regulators in administrative agencies — who are not lawyers? For decades, most U.S. legislatures and regulatory agencies have employed lawyers — such as legislative counsel and agency general counsel — to help nonlawyer lawmakers acquire the knowledge they need to make informed decisions about proposed legislation or rules. Since these advisory relationships have developed over many years, the current practices of legislative and agency counsel in advising nonlawyer official lawmakers about proposed laws likely reflect the official nonlawyer lawmakers’ actual information needs. Nonlawyer citizen lawmakers likely need the same information about proposed laws that nonlawyer governmental lawmakers need. Therefore, there are reasonable grounds for believing that the kinds of information about proposed laws that legislative and agency counsel regularly give to nonlawyer official lawmakers closely resemble the kinds of information that nonlawyer citizen lawmakers need.
What Does the Literature Tell Us?
So what kinds of information about proposed laws do legislative and regulatory counsel in the U.S. give to nonlawyer governmental lawmakers? Here is a summary based on a preliminary examination of the literature:
1. Counsel often explain the policy objectives of the proposed law, the alternative means — other than enactment of the proposed constitutional amendment, statute, or regulation — of achieving those objectives, and the reasons for choosing lawmaking over those alternatives. Such alternatives may include:
- Taking no action, if an existing statute or regulation adequately addresses the issue;
- If the lawmaker is a legislator, and a regulatory agency has authority to regulate respecting the issue, allowing the agency to regulate;
- If resources rather than regulation could address the issue, taking fiscal rather than regulatory action;
- If clarification of the law is needed, requesting an Attorney General’s opinion or (where permitted) a judicial advisory opinion; or
- If the lawmaker is a legislator in a jurisdiction in which resolutions have some limited legal effect, pursuing a legislative resolution rather than a statute.
2. Counsel often provide a plain language summary of the proposed law, and a line-by-line, plain-language explanation of the law. The latter is analogous to a literal translation of a foreign-language work into a language understood by the lawmaker.
3. Counsel explain the language choices made in drafting the proposed law, what the alternative language choices were, and why the chosen phrasings were preferred over the alternatives. Counsel’s justifications for language choices often include achieving particular legal effects, avoiding legal challenges, or reconciling conflicting legal or political interests of stakeholders.
4. Counsel explain in detail the context of the proposed law. This context has at least five dimensions:
- First, there may be a broad policy framework for the proposed law. Often a law is proposed as a component of a largescale policy initiative that may be implemented by legal and non-legal means. For example, a governmental policy initiative to reduce cigarette smoking may include legal measures such as statutes and administrative regulations, but also non-legal methods such as public service advertising, voluntary collaboration between government officials and private healthcare providers to design health education materials, and industry self-regulation. Lawmakers need to see the full picture of the relevant policy framework, in order to understand the role and effect of the proposed law within that framework.
- Second, there may be a broad statutory or regulatory framework in which the proposed law will fit. A proposed law could take the form of an amendment to an existing, elaborate body of statutes or regulations. For example, much legislation and regulation today takes the form of long and complex laws having numerous components, but originally conceived as coherent systems, with discernible relationships to particular policy objectives. Notable examples include Revised Article 9 of the Uniform Commercial Code, and Canada’s Copyright Act 1985. In many instances, proposed legislation is intended to amend such an existing legal framework. Therefore, in addition to understanding the literal meaning of the proposed law, the lawmaker needs to understand the meaning of broader legal framework that the proposed law is intended to amend, and how the meaning of that broader legal framework would alter if amended by the proposed law. Since broad legal frameworks are often enacted with the intent of implementing particular policies, the lawmaker will need to know, not just the literal meaning of the existing broad legal framework, but the policies underlying that framework, the relationship between those policies and particular provisions of the framework, and how the proposed amendment will affect the way the framework achieves those policy objectives.
- Third, if the proposed law is itself a new, independent, “stand-alone” statute or regulation, then the lawmaker needs to know where the law will be placed in the jurisdiction’s statutory or administrative code, because the location of a law in a particular code title, and its proximity to nearby statutes or regulations within that title, affect how courts will interpret the language of the law. For example, a proposed new statute on pass-through business organizations could be codified in the tax title or the business organizations title of the jurisdiction’s statutory code, and that choice is likely to affect how courts interpret particular provisions of the statute. Lawmakers need to understand the legal implications of that codification choice, the alternatives, and why the chosen option is preferable to the alternatives.
- Fourth, the lawmaker needs to understand the origins and history of the proposed law. Such origins include the identities and affiliations of the drafters and sponsors of the proposed law; the statements those drafters and sponsors have made respecting the policy basis for the proposed law, as in committee reports or debates; and the statements of members of the public who have commented on the proposed law through hearings or notice-and-comment rulemaking processes.
- Fifth, the lawmaker must understand other contextual factors that courts are likely to consider in construing and interpreting the proposed law. These include canons of statutory construction, principles of equity jurisprudence, public policy principles that courts are permitted or required to consider in certain situations, and case law respecting the area of law addressed by the proposed law. These contextual factors may lead a court to give a meaning to statutory language not apparent from the face of the statute, as when a court uses case law to expand the meaning of a statutory phrase beyond its plain meaning, or interprets a statute as codifying, rather than overruling, a judicial precedent.
5. Counsel explain the likely legal effects of the proposed law. Such effects may occur within the area of law expressly addressed by the proposed law, or may arise in other areas of law. Delegation of regulatory authority provides an example of an effect on laws having the same topic as the proposed law. If the proposed law is a statute that delegates regulatory authority to an administrative agency, the lawmaker must determine whether the statute effectively grants the agency sufficient legal authority to regulate as the lawmaker desires. For instance, the wording of particular statutory provisions could expand or narrow the regulatory agency’s authority to regulate respecting particular issues, or render the agency’s regulations more or less vulnerable to challenge in court. Counsel also explain the ancillary legal effects of the proposed law; that is, the potential effects on laws other than the legal framework in which the proposed law will fit. For example, if the proposed law would amend a tax statute, laws concerning a range of other tax-sensitive subjects, such as business organizations or family law, could be affected.
6. Counsel explain the likely civil society effects of the proposed law. These may include economic costs and benefits, as well as social, cultural, health, or environmental consequences.
7. Counsel explain the likely public administrative effects of the proposed law. For example, if the proposed law concerns crime, counsel explains the likelihood that the law will be effectively enforced, the probable enforcement costs, and administrative problems likely to result from the law. If the law is a statute that delegates regulatory authority to an administrative agency, counsel explains why one agency was chosen over other possible agencies, the chosen agency’s ability to regulate effectively in this area, and the budgetary implications for the agency.
8. Counsel explain the bases for possible legal challenges to the proposed law. Such bases include the content of the record supporting the proposed law, the procedures used to enact the proposed law, and the inconsistency of the proposed law with controlling laws of the lawmaker’s jurisdiction, or of a superior jurisdiction (as when a state or provincial statute is arguably preempted by a federal statute or arguably violates a federal constitutional provision).
What Other Sources of Information Are Relevant?
In addition to the views of governmental counsel, the comments of nongovernmental lawyers who participate in the lawmaking process may also be valuable to the lawmaker. Such comments may reveal the interests of stakeholders whose views have not previously been considered, or may contain legal insights missing from official counsel’s advice. The lawmaker will want to consider the views of lawyers who testify at hearings or who submit comments through notice-and-comment rulemaking processes. The need for access to this information underscores the desirability for making such testimony and comments available online as soon as possible after submission.
Conclusion, and a Look Ahead
This glimpse at the kinds of information about proposed laws that nonlawyer official lawmakers typically receive suggests that nonlawyer citizens engaging in online lawmaking need a substantial amount of information in order to make informed decisions. In a future post, I’ll discuss how developers of eParticipation systems are dealing with the challenges of receiving, organizing, and presenting this information, to maximize the usefulness of this information to nonlawyer citizen lawmakers.
I consulted the following resources in writing this post. The following list is not a comprehensive list of resources on this topic, but rather represents the results of a preliminary literature review; it excludes treatises, among other important sources:
American Bar Association Section of Administrative Law & Regulatory Practice, Committee on the Status & Future of Federal e-Rulemaking, Achieving the Potential: The Future of Federal E-rulemaking: A Report to Congress and the President (2008).
Terry Carter, Silent Partners, ABA Journal, February 2001, at 22-23 (2001) (Vol. 87, No. 2).
Kathleen Clark, The Ethics of Representing Elected Representatives, Law and Contemporary Problems, Vol. 61, No. 2, 31-45 (1998).
Jeffrey J. Coonjohn, A Brief History of the California Legislative Counsel Bureau and the Growing Precedential Value of Its Digest and Opinions, 25 Pacific Law Journal 211-235 (1994) (Issue No. 2).
Frank H. Edwards, The Office of Legislative Counsel, Georgia State Bar Journal, February 1987, 114-115, 154 (Vol. 23, No. 3).
Michael J. Glennon, Who’s the Client? Legislative Lawyering Through the Rear-View Mirror, Law and Contemporary Problems, Vol. 61 No. 2, 21-30 (1998).
Michelle Grant, Legislative Lawyers and the Model Rules, 14 Georgetown Journal of Legal Ethics 823-838 (2001) (Issue No. 3).
David A. Marcello, The Ethics and Politics of Legislative Drafting, 70 Tulane Law Review 2437-2464 (1996). (Issue No. 6).
Robert J. Marchant, Representing Representatives: Ethical Considerations for the Legislature’s Attorneys, 6 New York University Journal of Legislation and Public Policy 439-465 (2002) (Issue Nos. 1-2).
Thomas O. McGarity, The Role of Government Attorneys in Regulatory Agency Rulemaking, Law and Contemporary Problems, Vol. 61, No. 1, 19-32 (1998).
Kevin C. Powers, Inside the World of the Legislative Lawyer, Nevada Lawyer, July 2002, at 7, 34-35 (Vol. 10, No. 2).
Roger Purdy, Professional Responsibility for Legislative Drafters: Suggested Guidelines and Discussion of Ethics and Role Problems, 11 Seton Hall Legislative Journal 67-120 (1987) (Issue No. 1).