Traditionally, the notice-and-comment rulemaking process required by 5 U.S.C. § 553 was conducted on paper: the government issued a paper notice and the public submitted paper comments.
This study focused on the many legal issues that arise in e-Rulemaking, including how agencies may use software to determine that submitted comments are identical or nearly identical, and whether agencies can (and should) destroy paper copies of comments scanned to electronic form. Such innovations should reduce costs and improve efficiency.
Background: In the last three months of a presidential administration, rulemaking activity increases considerably when compared to the same period in a non-transition year.* Although part of this increase likely results from ordinary procrastination and external delays, scholars have suggested that administrations also use the “midnight” period more strategically. First, administrations are said to have reserved...