This Foreword is meant as an initial foray into the question of what agencies should do with mass public comments, particularly on broad questions of policy. Part I discusses the extent to which congressional control, presidential control, and agency procedures themselves can ensure that agency decisions are democratically responsive. In view of shortcomings in both congressional and presidential control, I underscore the need to focus closely on rulemaking procedures as a source of democratic responsiveness. The possibility that agencies may be systematically discounting certain public submissions raises difficulties, and I present some examples. Part II makes a preliminary case that agencies should more thoroughly consider public policy and values comments. Public comments filed with an agency in reaction to a concrete proposal would seem to have considerable potential as a source of information on citizen values and preferences. The presence of significant and numerous public comments in a rulemaking might at least trigger further investigation and deliberation by an agency. Alternatively, agencies should more candidly and publicly acknowledge that participation in rulemaking can serve only a limited function.
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Mendelson, Nina A. "Foreword: Rulemaking, Democracy, and Torrents of E-mail." Geo. Wash. L. Rev. 79, no. 5 (2011): 1343-80.