Tuesday, April 15, 2008

Collaborative law-making, Law professors debate and a web 2.0 project creates

Penn Law Professors debate collaborative environmental law-making

Here are their arguments, as I understand them:

Coglianese argues that the purpose of environmental law-making should be the greatest public good, and that collaborative law-making processes become dedicated not to the public good, but to making a deal among competing interests. The results of such processes then often reflect the lowest common denominator to which parties could agree.

Orts argues that command-and-control statutory processes for environmental law-making are just as dominated by deal-making as collaborative processes, but at least the latter invites deal-making into the open. The principle weakness of command-and-control law-making is that (1) law-makers do not have all the information that they would need to make a good decision and a collaborative process would find more information and that (2) policy decisions are value judgments and collaborative processes can enable those who hold opposing values to negotiate a settlement, rather than allowing the decision to be made by third-party policy-makers.

As a partisan of Wiki-wisdom and participatory civil society, I lean towards Orts at first. But Coglianese's criticisms strike several serious blows. For example, I can accept that many policy decisions are values judgments that can't be decided by "experts". When the law-makers are not elected by and accountable to the public, then I would agree that these individuals should not adjudicate the values of a community they do not legitimately represent. But if they are elected officials, they are not alien "experts", but rather individuals chosen precisely to make these value judgments on behalf of the community. In the end I am torn between their two arguments.

So to cut the gordion knot, I'll just point to a different model of collaborative law-making. (Whew. Two paths diverged and I left the forest) At PublicMarkup.org the Sunlight Foundation has written a piece of proposed legislation entitled, "Transparency in Government Act". The bill's text is written like blog entries - un-editable to users. But there is endless space for comments next to the text. And the bill's authors are free to incorporate or not incorporate comments into their text.

This model escapes the deal-making, lowest-common-denominator-finding problem that Coglianese associates with collaborative law-making. How? It says, "Forget you. This is my bill, and it will say exactly what I want it to say". But it is collaborative in two senses. First, it is collaborative in the sense that the software and mission of the site invite participation from internet users. Second, the bill takes shape in public and outside of the traditional avenues of bill creation such as closed Congressional legislative shops.

In this way, PublicMarkup.org does not dilute its strength through collaboration, while at the same time earning the benefits of public participation, debate, fact-gathering and perspective-enlarging.

A caveat: the PublicMarkup.org process is an iterative one. It supplements rather than replaces traditional legislative processes, because its bill must still be introduced, accepted and legitimized by a representatives of the entire community.

I'm so excited about PublicMarkup.org and the prospect of open-source, publicly created legislation that it seems likely there will be more about it on this blog....


1 comment:

pinenut said...

Isn't environmental law fascinating? Perhaps you should become an environmental attorney. . . .