Tonight I'm speaking to a bunch of administrative law aficianados who are members of the Prettyman-Leventhal Inn of Court. Sounds pretty fancy-dancy British to me. I've been asked me to speak on "cutting edge issues in administrative law with general applicability across practice areas." Well, one that comes to mind is the new phenomenon we witnessed at the FCC earlier this year in the Media Ownership proceeding. In the two weeks before it was scheduled to act, the commisison was bombarded with over a million brief form letter-type e-mails urging the agency not to relax the ownership rules.
There is certainly good use to be made of the Internet in a rulemaking setting to help disseminate widely public notice concerning what the agency proposes to do and to facilitate the ability of the public to participate in the rulemaking process by making its views known. But, as I wrote back in July, if the campaign-style tactic of flooding the agency with gazillions of form e-mails--and then besseching the agency to act based on the professed public sentiment--becomes the norm, the New Deal idea of an agency acting on the basis of specialized expertise may not be long for this world.
Of course, whether the idea of a New Deal-type multimember commission acting under very broad delegations of authority makes sense as a communications policymaker in the digital age is a big question in of itself. I've suggested previously that what is needed is a slimmed down agency, perhaps placed in the Executive Branch, that regulates much less.
But tonight I'll stick to cross-cutting ad law issues like how e-rulemaking may ultimately, for better or worse, change our ideas about how so-called expert agencies go about making decisions.