ISSN 1062-7421
Vol. 11 No. 11 (November 2001) pp. 495-498.


RULEMAKING, PARTICIPATION AND THE LIMITS OF PUBLIC LAW IN THE USA AND EUROPE by Theodora Th. Ziamou. Burlington, VT: Ashgate Publishing Co., 2001. 270pp. Cloth $104.95. ISBN: 0-7546-2179-0.

Reviewed by Rob Hennig, Department of Political Science, UCLA.

Administrative law has an image problem. It lacks the weighty importance of constitutionalism. Still, it is administrative law-particularly in regulation promulgation and enforcement-that much of the business of the modern state is actually accomplished. It is for this reason that it deserves our attention.

As one who toils in the field of administrative law, I am happy to have another set of hands. Apparently this book is Theodora Ziamou's dissertation from the University of Oxford where she received her Ph.D. in 1999. Although I have my reservations with the book, it was certainly an ambitious project and it will be interesting to see where Ziamou takes her interests.

The central thesis of RULEMAKING, PARTICIPATION AND THE LIMITS OF PUBLIC LAW IN THE USA AND EUROPE is a normative argument that there should be greater public participation in administrative rulemaking. According to Ziamou, participation enhances the value of legitimacy in government and
improves the quality of rules being made.

I am uncertain as to the ultimate merit of this argument. This is particularly true in the parliamentary systems that Ziamou examines. My main point of contention, however, with her thesis is that the book itself does not seem to be organized to support her claim. Instead, there is a wonderfully detailed discussion of comparative administrative law with little examination of how participation has enhanced or improved administrative rulemaking or how a lack of participation has done the opposite.

Ziamou organizes her book around a comparative study of the administrative procedures of four countries: the United States, the United Kingdom, Germany, and Greece. In comparing the four countries, she first offers an explanation of what administrative rules are and how they differ in each country.

Ziamou then offers a splendid short description of the differing processes of administrative action. I could not help but be impressed by the systematic way Ziamou details the variances in administrative law and how these variations relate to the larger political questions of each democracy. Ziamou's discussion of rulemaking by private entities and the use of negotiated rulemaking are particularly interesting.

Although a detailed description is beyond the scope of this review, it is enough to suggest that each country has developed particular styles while maintaining striking similarities. All four countries, for example,

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maintain a sharp contrast between rulemaking and its application against particular citizens. In each country there is also a much greater level of formal procedural protections afforded during enforcement than during rulemaking.

Ziamou then proceeds with a discussion of the varying levels of public participation in the rulemaking process. Ziamou notes that there is comparatively little opportunity for public involvement in Germany, for example, because of the historical emphasis upon objective correctness of the rule. Yet all is not barren for public participation. Due to a European Union directive, however, both Germany and Greece have adopted public participation procedures with regard to environmental rulemaking.

Ziamou's discussion moves to the role of courts in each country. The book's particular emphasis is the role courts have played in each country's requirements for public participation. Ziamou notes that only American courts have been aggressive in their oversight of bureaucratic rulemaking and, in particular, their review of an agency's responsibility to involve public citizens.

Finally, Ziamou ends her book with a short chapter advocating greater public involvement in Europe. Ziamou claims that greater public participation would improve rulemaking itself as well as increase the legitimacy of government more generally. Public participation would make better rules by bringing out information not previously considered-or considered but with the wrong level of emphasis-to the attention of agency officials. Legitimacy would be enhanced because public participation creates a stake in the promulgated regulations that would not otherwise exist. This stake creates greater ownership of governmental decisions by the citizenry.

Ziamou states, "A greater regard for participation in rulemaking can constitute a valuable form of 'secondary participation' for citizens in government. By enabling citizens to influence political events, public participation can increase the legitimacy of both rules and rulemaking authorities, and thus strengthen democracy" (p. 245 footnote omitted).

From my standpoint as a political scientist, this book is somewhat of a disappointment. Essentially that is because Ziamou has written a comparative legal text. Its strongest chapters are its descriptive ones about administrative law and rulemaking in the four chosen countries.

At the same time, it appears to be entirely a library referenced work. I could find no original empirical research citations. This is problematic because the formal requirements of administrative rulemaking may play out differently in practice. This is particularly true in the United Kingdom. In the United Kingdom, most public interaction with administrative agencies during rulemaking appears to be entirely informal and consultative. The question that never gets answered is whether this works out in practice to be enough. Ziamou assumes the lack of formal requirements necessarily precludes insufficient involvement. In administrative law so much is contextual upon the actual practices of the agency that a description of the legal requirements is not necessarily telling of what is actually happening.

As mentioned earlier, there is also the issue of participation. First, I am not convinced participation has been a source of unmitigated joy in American rulemaking.

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This is particularly true of the rulemaking comment period that Ziamou seems to extol. Comment periods have often taken on the look of an Internet poll where those interest groups with the most time and ambition can collectively submit thousands of replies about a proposed rule.

Court requirements of substantive responsiveness by agencies have meant after a comment period closes, an agency must spend months and sometimes years responding in a substantive way to every individual comment no matter how trivial to pass judicial scrutiny.

Certainly participation has its merits. From a pluralist perspective, it is the best way of achieving the "correct" rule. At the same time, participation does not necessarily advance better scientifically grounded or more prudential decisions by an agency. Nor is any evidence presented that participation leads to greater legitimacy of a rule. Ziamou notes that German administrative law emphasizes the virtues of rapid and uncomplicated adoption (p. 135). Why are these competing values inferior?

A more detailed and nuanced discussion by Ziamou on the benefits and costs of public participation in its different forms would have been helpful.
As Ziamou herself notes, "it has been the dissatisfaction with existing procedures that has constituted the historical reason for the institutionalization of regulatory negotiations in the American legal system" (p. 104). Although regulatory negotiations are certainly a form of public participation, they were created because other forms of public participation were not working. Ziamou seems uncritically to accept the American experience as good and worth imitating in Europe.

I am also somewhat wary of the merits of transplanting the American practice to parliamentary systems. A Parliamentary government has no incentive to create more formal rulemaking processes or involve greater public participation because of the fixed control of the rulemaking by the party in power. The American bureaucracy, by contrast, has a much greater level of independence both from Congress and from the President. Participation is a way to strengthen weaker democratic accountability.

As an aside, I think it would have been more interesting to discuss the level of public participation in European Union rulemaking. There appears to be a greater need for oversight of Brussels where there is no clear accountability in the large emerging European bureaucracy.

Finally, Ziamou is correct on the timidity of the European courts to impose participatory qualifications, especially in Germany, and Greece. At the same time, American courts have cited the specific provisions of the Administrative Procedures Act of 1946 as at least a plausible basis for greater participatory requirements. Without such an explicit "hook" to hang such requirements, I am not sure how much the courts are to blame.

Before I sound like a complete curmudgeon, there is certainly much to like about this work. I am afraid, alas, that for law and courts scholars, this book will be of limited use. If the book was more empirically grounded, it would be an interesting comparative work of administrative practice and the merits and limitations of various procedures. If the book emphasized the normative issue of participation and why it is important, it would be a strong theoretical work and,

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perhaps, a call to arms for greater public participation in Europe in the administrative process. As it stands, this book is perhaps most useful as a reference for the varying procedural requirements each country places upon the bureaucracy. Ziamou's work will hopefully find a welcome home particularly on the shelves of legal scholars.

Perhaps there is a greater potential in Ziamou's book. The final chapter on the merits of public participation in Europe is an excellent starting off point for the important discussion on the merits of public participation, particularly in European Parliamentary democracies. It is my hope that Ziamou's work will generate more interest in this discussion and greater awareness of the costs and benefits of such participation not just in Europe but in the United States as well.

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Copyright 2001 by the author, Rob Hennig.