Transcript of talk presented at the American University Conference on Rulemaking, March 16, 2005. Panel 4 on Citizen Participation in Rulemaking. I used the panel as an opportunity to showcase our new Gallery of Innovations in E-Rulemaking. (link to draft version)
INNOVATIONS IN CITIZEN PARTICIPATION: THE GALLERY OF E-RULEMAKING INNOVATIONS
In the interest of the late hour why don’t I start without the slides, and at least just set the stage for what I’m going to say in response to Oscar. That is, the work that I do on rulemaking in fact is part of a larger project and work on exactly these e-democratic questions, focusing particularly on the impact of new technology on the way people organize themselves, on the dynamics of groups, and the ability for people to come together as a result of networks to do more together than they can do alone. So I’m deeply interested in exploring the impact of new technology, particularly in the rulemaking context, and the impact more generally on the structure and processes of legal institutions.
So I just want to make three very brief points today and actually focus my remarks on showing you an innovation that grows, not out of simply out of the writing that I’ve done, which you can read elsewhere, but on some of the software designs that we’ve done. We are attempting to make practical solutions, not simply academic suggestions.
So three quick points [see slide 2]. First, we have to recognize that what the technology allows us to do is to translate the legal right of participation into participative practices. [see slide 3] That means we need to think about designing the tools that are most effective, I would argue, not simply for individuals to participate in the process. As we have seen from Stuart’s presentation there is a danger of too much individual participation or what I call the notice and spam problem. Rather than focus simply on individual participation, we need to focus on developing tools and technologies that allow and facilitate groups to participate. Now by groups I don’t mean interest groups or further entrenching the kind of activity of which Stuart complained. I am talking about developing the rulemaking community of practice so that people can shape and refine their ideas in collaboration with one another.
That means in terms of concrete design, actually taking a lesson from the social software movement and creating interfaces that allow us not simply to see text but to see ourselves as part of the group of rulemaking practice. This [see slide 4] is an example of a chat tool, but I use it just to show you the idea of using the screen to see yourself as part of a community. Let me show you another example of one of the things that my students created. This is using a tree map [see slide 5], a free technology developed at University of Maryland, that allows you to use color and shape and size to see yourself as part of the community. In this case it shows the volume and intensity of commenting in a particular area. We could take exactly the slide that Stuart just gave us showing the list of which group made which comments (i.e. these were the Move On comments and this was the Sierra Club comments) and show you this belonging a priori to show which rulemaking communities we’re a part of, to see yourself as part of a process and as a way of reforming practice.
For example, let me just mention, I just got an e-mail this morning that Lawrence Lessig is putting up his book “Code and Other Laws of Cyberspace” on the web to be collaboratively edited in a wiki, a collaborative editing tool, as a way of editing the book. There will be a conference at Stanford on deliberative democracy coming up in May in which we will explore the use of such wikis for policymaking, and one can imagine the use of such collaborative authoring tools, again, for seeing the group and helping the group to participate both in drafting as well as in compliance.
Second, I would argue that we need to focus not simply on the deliberative practices as we traditionally understand them, but on visual deliberation [see slide 6]. And that is to say what we’ve always understood to be deliberation and what we’ve understood to be the practices that lead to the public exchange of reasoned ideas, in fact the technological assumptions that undergird our definition of deliberative democracy are changing, and in fact we can use the visual screen and the visual interface often more effectively and quicker to help manage communication and make more deliberative communication.
So whatever the goals of participation, to get back to Tino’s point, whatever the goals of participation may be, I think we can use the screen to do it better by creating better visual interfaces. And this is counter-intuitive for a lawyer like me, or for lots of lawyers who love and rely on text, to think about how we can use the visual screen to get better quality and easier participation. This [see slides 7&8] is an example of a tool developed by a colleague of mine called the clickable statute, which takes complicated statutory language and turns it into an interactive and clickable diagram – it’s a fuzzy picture on my slide but you can click on the software to see whether you’ve complied with the various portions of the statute and it lights up to tell you if you’ve satisfied a particular cause of action. It’s just one example of a way of using visual technology as a way of representing information that might make it more intelligible to many people. Not to everyone, but at least to some people.
This [see slides 9 and 10] is a redesign of regs.gov by one of my students, who thought this would be a better way to have an introduction than a simply text-based page. It would be more engaging, it would draw people in, and it would help create ultimately better comments.
I can’t help but thinking and looking at Stuart’s presentation and some of the tools that he’s developed that I would love to see those used, not after the fact, as a social analysis tool, but up front to show people the effect of their own comments.If people can visualize their participation and its impact, they end up participating in a better way.
Finally, the third point is that I think we need not simply – and this is particularly to respond to Oscar – not to require everything of him. And the suggestions that I made in the article he was referring to are not aimed at him or really a critique in fact of what the government is doing. It’s to say that the rest of us have a responsibility, including the technology community, to build additional tools, to create the kind of informal participation mechanisms that Neil spoke about at lunch [see slide 11].
So I think what we need to do is articulate the demand to the tech community, to tell other people about it, to give people the data. So you give Stuart the data and he creates all these wonderful tools. You can take the data, as three different groups are doing now with the Thomas web site and three different groups are creating better ways, or different ways of visualizing legislative information as an alternative to Thomas. There are two different Open Congress projects right now.
Other people will build it. The blogosphere will come, like it or not. So I think we need to think about the ways of creating a culture of rulemaking and using the tools more effectively to do that.
So let me just say how might we go from this [see slide 12] (which now has four boxes instead of one) and how can we do that in a concrete and practical way and a helpful way. How can we help Oscar to do his job instead of being academic pains in the ass? By trading and sharing ideas for innovations. And that is not simply, I would like to suggest – and what we’ve done is not simply focus only on the very large kind of back end problems with which the government has to wrestle, but to focus on some of the front end or interface issues, the screen through which citizens will experience the government.
So what we have done is to create a gallery of rulemaking innovations [see slide 13]. It’s a little hard to see here but this has just been created, and this allows you to share and upload innovations in rulemaking practice [see slide 14. I’ll just show you one quick example. It would allow you to come in, for example, and let’s say, let me get ideas for how to do the comment process better. This will create, we hope, a way to share and trade innovations across levels of government, across the technology community and to the legal and policy community. So for example, here is an innovation created by one of my colleagues. And it’s very simple. He simply uploaded a picture, he’s uploaded a description – I’m sorry the screen size makes this a little hard to see – and allows people to come in and in fact to rate it, post a comment, and engage in a discussion about what kind of interfaces, practices and methods might be most useful.
The idea behind this is to, again, create a way to facilitate the sharing and exchange of information, not necessarily only the visual interfaces that we have developed and created and that my own students focus on, but to focus on innovations in practice, in method, in sharing ideas across communities so that we can get at, for example, the kinds of solutions to the problems that Neil was suggesting and raising at lunch [see slide 15]. I couldn’t help but thinking that in regard to your “how do we speed up the processing problem,” there’s a wonderful system that’s been developed in Seoul, Korea for managing administrative work called the Open System. But it is very hard to share and trade that kind of information unless we have a place to do it and a way that’s simple and easy to use.
With this Gallery of Rulemaking Innovations there’s an easy way to both create new pathways and upload an innovation, and I’m happy to share the URL for this. It will be on our web site. And to get your participation in helping to refine and develop this piece of software, and hopefully to use it. It’s only as useful as – as it turns out to be, and if people actually find it helpful. So we look forward to developing it with your help.
And I wouldn’t be complete if I did not show you the virtual hot tub [slide 16], of which Oscar has complained and which Stuart makes me show this every time. We have just received a grant, together with the University of Florida Center on Family and Children to develop – to experiment with creating the virtual rulemaking hot tub or, in other words, to experiment further with how technology affects the right of democratic participation. So Oscar, we will see you in the Jacuzzi.
Thank you very much.
