When eighteenth-century chronicler James Boswell told Dr. Samuel Johnson a story about attending a Quaker meeting at which a woman preached, the latter commented: “Sir, a woman’s preaching is like a dog’s walking on his hind legs. It is not done well; but you are surprised to find it done at all.” Dr. Johnson’s characteristically waspish response was insightful, although its insight was not the one he intended. Given the cultural positioning of women in England at the time—a highly constricted space enforced by legal, social, physical, and economic barriers—it was indeed surprising that a woman could speak authoritatively in a public setting at all. That some women did so, and did so well, was little short of astounding.
So it is with public participation in rulemaking. Given the barriers to effective citizen engagement in the process—lack of understanding of the nature and importance of rulemaking, lack of awareness when rulemakings of interest are occurring, and lack of motivation or capacity to penetrate the linguistically and technically complex mass of agency documents—it is surprising that individuals, small businesses, nongovernmental organizations, and state, local, and tribal government entities file comments at all. That some of these (whom we refer to here as “rulemaking newcomers”) not only participate, but participate effectively, is little short of astounding.
We have written elsewhere about the formidable barriers to broader, better rulemaking participation by those new to rulemaking. And we have suggested strategies for lowering these barriers based on our research in Regulation Room, an experimental online public participation platform, on which we host selected live rulemakings of our agency partners. In this Essay, we suggest an additional, more subtle, but no less daunting, barrier that has become evident to us from observing the behavior of new rulemaking participants in Regulation Room: a fundamental incongruence between the ways that “insiders” think and talk in rulemaking and the ways that novice commenters do.
