Mark Seidenfeld (Florida State University College of Law) has posted The Limits of Deliberation About the Public’s Values (Michigan Law Review, Vol. 119, No. 6, 2021) on SSRN. Here is the abstract:
The Public’s Law recounts a Progressive tradition of administrative law, influenced by Hegel and dedicated to a democratic and participatory administrative state. It goes on to suggest a “normative architecture” by which the government could implement the shared will of the public as determined by deliberative democratic processes in which each person participates as an equal. Unfortunately, Emerson does not adequately grapple with both the fact that members of the general public is not sufficiently informed about the impact of regulations on them. He also does not adequately address that agency staff members are chosen mostly for specific technical expertise, and have no special skill in encouraging deliberation or in evaluating inputs from the public to divine some overarching public value to guide regulation. Thus, although I applaud Emerson’s ultimate vision, unfortunately it remains to be demonstrated that public deliberation is capable of performing the task that the Progressive tradition asks of it.
This is a review of “The Public’s Law: Origins and Architecture OF Progressive Democracy” by Blake Emerson. Recommended.