Hoekstra: Dataset: A Network Analysis of Dutch Regulations

Dr. Rinke Hoekstra of the Leibniz Center for Law has posted a dataset entitled A Network Analysis of Dutch Regulations.

Here is the description:

This fileset contains two networks (CSV files) of citations between Dutch regulations stored on the MetaLex Document Server, at the document level, and at the article level. We ran several network analysis measures over these networks (stored again in two CSV files) and provide two visualisations of the networks (size is PageRank, color is given by Module).

This is an accompaniment to a submission to the Network Analysis in Law workshop of ICAIL 2013.

Mendelson: Private Control Over Access to Public Law: Federal Regulatory Use of Private Standards

Professor Nina A. Mendelson of University of Michigan Law School has posted Private Control Over Access to Public Law: The Puzzling Federal Regulatory Use of Private Standards, forthcoming in Michigan Law Review.

Here is the abstract:

To save resources and build on private expertise, federal agencies have incorporated private standards into thousands of federal regulations – but only by “reference.” An individual who wishes to read this binding federal regulatory law cannot access it for free online or in a government depository library, as she can the U.S. Code or Code of Federal Regulations. Instead, the individual is referred to the private organization that prepared the standard, which typically asserts a copyright and charges a significant access fee. Or else she must travel to Washington, D.C. Thus, this category of law has come under largely private control.

In assessing the arguments why law needs to be public, previous analyses have focused almost wholly on whether regulated entities have notice of their obligations. This article evaluates several other considerations, including notice to those who expect to benefit from the way government regulates others, such as consumers of dangerous products, neighbors of natural gas pipelines, and Medicare beneficiaries. Ready public access also is critical to ensure that federal agencies are accountable to the courts, Congress, and the electorate for the regulatory power they exercise. As shown by an assessment of the institutional dynamics surrounding public and private interaction to define the scope of federal regulation, the need for ready public access is at least as strong in this collaborative governance setting as when agencies act alone. Finally, expressive harm is likely to flow from government adopting regulatory law that is, in contrast to American law in general, more costly to access and harder to find. Full consideration of the importance of public access both strengthens the case for reform and limits the range of acceptable reform measures.

Mill on Scout, Free Access to Law, and Open Legal Data

Eric Mill of the Sunlight Foundation has posted the text of his presentation on tracking government information and open legal data, given 26 April 2013 at the AzALL Congressional Information Symposium, in Phoenix, Arizona, USA.

Here is the introduction to the presentation:

I recently got a chance to go speak to a group of Arizona law librarians about legal informatics [...]

They found me because of Scout, and asked me to talk about tracking government information. I decided to start with Scout as an example, to zoom out to similar projects [GovTrack and CourtListener] , and then to describe the conditions necessary to make projects like ours possible. Because the audience was law librarians, a sympathetic crowd inside an unsympathetic area of government, I emphasized the necessity of absolutely free access to data as a fundamental requirement and right. [...]

For more details, please see the complete post.

HT @konklone

Nyman-Metcalf and Täks : Simplifying the law: Can ICT help us?

Professor Katrin Nyman-Metcalf and Ermo Täks, both of Tallinn University of Technology, have published Simplifying the law—can ICT help us? forthcoming in International Journal of Law and Information Technology.

Here is the abstract:

The article analyses how Information and Communication Technologies (ICT) can assist in simplifying law, by visualizing it and structuring it. It describes current research as well as activities by the European Union to make law more accessible by using ICT. The authors offers a new method for visualization of law for its better systematization and use, based on the legal language and its components.

Peña Gangadharan: Toward a Deliberative Standard: Rethinking Participation in Rulemaking

Dr. Seeta Peña Gangadharan of the New America Foundation has published Toward a Deliberative Standard: Rethinking Participation in Policymaking, Communication, Culture, and Critique, 6, 1-19 (2013).

Here is the abstract:

In contrast to communitarian and pluralist approaches to participation, the following article develops a deliberative model of participation in rulemaking at the Federal Communications Commission (FCC). This deliberative model is distinguished by its concern for the emergence of publics and for the speaking and listening capacities of policymakers and publics alike. The model focuses both on spaces for collective discussion as well as translation between sites of discussion. Embracing a complex view of civil society, and stressing the principle of inclusion, a deliberative model corresponds to a form of legitimacy that extends beyond the boundaries of conventional administrative procedure.

Coglianese: Enhancing Public Access to Online Rulemaking Information

Professor Dr. Cary Coglianese of University of Pennsylvania Law School has published Enhancing Public Access to Online Rulemaking Information, Michigan Journal of Environmental & Administrative Law, Vol. 2, pp. 1-66 (2012).

Here is the abstract:

One of the most significant powers exercised by federal agencies is their power to make rules. Given the importance of agency rulemaking, the process by which agencies develop rules has long been subject to procedural requirements aiming to advance democratic values of openness and public participation. With the advent of the digital age, government agencies have engaged in increasing efforts to make rulemaking information available online as well as to elicit public participation via electronic means of communication. How successful are these efforts? How might they be improved? In this article, I investigate agencies’ efforts to make rulemaking information available online. Drawing on a review of current agency uses of the Internet, a systematic survey of regulatory agencies’ websites, and interviews with managers at a variety of federal regulatory agencies, I identify both existing “best practices” as well as opportunities for continued improvement. The findings of this research suggest that there exist both considerable differences in how well different agencies are making rulemaking information available online as well as significant opportunities for the diffusion of best-practice innovations that some agencies have adopted. This research also provides a basis for seven recommendations that I offer for enhancing both the accessibility and quality of rulemaking through online technology. A commitment to well-accepted democratic principles applicable to regulatory agencies should lead federal web designers to strive to create websites that are as accessible to ordinary citizens, including individuals with limited English proficiency, vision impairments, and low-bandwidth connections, as they are to the sophisticated repeat players in Washington policymaking circles.

The article focuses on erulemaking systems other than Regulations.gov and RegulationRoom.

LobbyPlag: compares text of EU regulation with texts of lobbyists’ proposals

A service called LobbyPlag lets users view provisions of EU regulations and compare them to provisions of lobbyists’ proposals.

The example currently available on LobbyPlag concerns the General Data Protection Regulation (GDPR).

Click here to see how LobbyPlag compares the GDPR’s forum shopping provision to what the site claims are lobbyists’ proposals for that provision.

LobbyPlag is an interesting use of legal text comparison tools to promote transparency.

LobbyPlag appears to have been developed by journalist Richard Gutjahr, and Marco Maas of Open Data City.

Click here for Richard Gutjahr’s post about the development of LobbyPlag: LobbyPlag: Die Copy & Paste-Gesetzgeber aus Brüssel.

HT Tim Bonnemann

Sunlight Foundation Releases Docket Wrench: Tool for Analyzing Comments to Proposed Regulations

Sunlight Foundation today released Docket Wrench, an online system that analyzes and summarizes public comments to proposed U.S. federal regulations, according to Nicko Margolies’s post, Docket Wrench: Exposing Trends in Regulatory Comments.

Here is an excerpt of the announcement:

Today the Sunlight Foundation unveils Docket Wrench, an online research tool to dig into regulatory comments and uncover patterns among millions of documents. Docket Wrench offers a window into the rulemaking process where special interests and individuals can wield their influence without the level of scrutiny traditional lobbying activities receive.

Before an agency finalizes a proposed rule that Congress and the president have mandated that they enforce, there is a period of public commenting where the agency solicits feedback from those affected by the rule. The commenters can vary from company or industry representatives to citizens concerned about laws that impact their environment, schools, finances and much more. These comments and related documents are grouped into “dockets” where you can follow the actions related to each rule. Every rulemaking docket has its own page on Docket Wrench where you can get a graphical overview of the docket, drill down into the rules and notices it contains and read the comments on those rules. We’ve pulled all this information together into one spot so you can more easily research trends and extract interesting stories from the data. [...]

For more details, please see the complete announcement.

According to Tom Lee of Sunlight Foundation, Docket Wrench was developed by Andrew Pendleton and Amy Cesal.

HT @tjl

Koops: Criminal Law and Cyberspace as a Challenge for Legal Research

Professor Dr. Bert-Jaap Koops of Tilburg University Institute of Law, Technology, and Society has published Criminal law and Cyberspace as a Challenge for Legal Research, SCRIPTed 9(3), article 254 (2012).

Here is the abstract:

The Internet transforms crime and crime-fighting, which has fundamental implications for the law and legal research. Since online and offline activities are seamlessly integrated, cybercrime is no longer a specialist field but affects the core of 21st-century criminal law. The transformation of crime exposes gaps in substantive and procedural criminal law, creating three types of challenges. First, regulatory challenges, e.g., how to deal with sovereignty and jurisdiction conflicts in borderless cyberspace. Second, normative challenges, such as value conflicts related to Internet content. Third, technological challenges, related to secure computing and value-sensitive design. The interplay of these challenges should lie at the heart of criminal-law research in the cyberspace age.

Classic legal research often addresses problems in a one-dimensional manner: the law is taken as a given and then applied to a societal issue, or a social development is used to argue why and how the law should change. However valuable such research can be, legal research needs to factor in the role that technology increasingly plays in law and society, as well as the process of the mutual shaping of regulation, technology, and society. This calls for multidisciplinary research aiming for prudent solutions to regulatory problems. If criminal law is to stay abreast of the 21st century challenges of crime permeated by cyberspace, dogmatic understanding of the criminal law system itself no longer suffices. Rather, researchers need to be well-versed in regulation theory, adopting concepts like the regulatory tool-box and multi-level governance, to meet the challenges of globally, digitally networked crime.

Strauss on Private Standards Organizations and Public Law

Professor Peter L. Strauss of Columbia Law School has posted Private Standards Organizations and Public Law, on SSRN.

Here is the abstract:

Simplified, universal access to law is one of the important transformations worked by the digital age. With the replacement of physical by digital copies, citizens ordinarily need travel only to the nearest computer to find and read the texts that bind them. Lagging behind this development, however, has been computer access to standards developed by private standards development organizations, often under the umbrella of the American National Standards Institute, and then converted by agency actions incorporating them by reference into legal obligations. To discover what colors OSHA requires for use in workplace caution signs, one must purchase from ANSI the standard OSHA has referenced in its regulations, at the price ANSI chooses to charge for it.

The regulations governing incorporation by reference as a federal matter have not been revised since 1982, and so do not address the changes the digital age has brought about in what it means for incorporated matter to be “reasonably available,” as 5 U.S.C. §552(a)(1) requires. This essay seeks to bridge that gap, suggesting a variety of approaches that might bring the use of incorporation by reference into conformity with modern rulemaking practices and respect the general proposition that documents stating citizens’ legal obligations are not subject to copyright, while at the same time both honoring clear federal statutory policy favoring the use of privately developed standards in rulemaking and respecting the needs standards organizations have to find reasonable means to support the costs of their operations. Business models created in the age of print need to change; the challenge is to find ways to permit the market in privately developed voluntary standards to thrive, without thereby permitting the monopoly pricing of access to governing law.

For background on this free-access-to-law issue, please see: Published Free on the Web: Full Text of 317 Proprietary Standards Incorporated by Reference in the U.S. Code of Federal Regulations.