Elizabeth C. Fisher, University of Oxford Faculty of Law, and Sidney A. Shapiro, Wake Forest University School of Law, have posted Storytelling, Rulemaking, and the Expertise of Administrative Agencies. The paper describes and categorizes comments from the records of twenty-five recent rulemakings by twenty agencies, as well as ten dockets from the years 1974-1992.
For ill or good, the world is full of stories. Given the political stories being used to deconstruct the administrative state, it is easy to be cynical about stories and to discourage their use. But humans are story telling animals. Administrative lawyers need to be cognizant of that fact, and craft their understanding of administrative competence considering it. In this groundbreaking survey of stories in rulemaking comments we show how many different types of commenters are telling stories for a variety of reasons. These stories differ in scale and focus, and in their value to the rulemaking processa fact that underscores that stories need to be evaluated. Given that stories are how humans structure reality, build social relations, and persuade each other this is inevitable. As is the way in which humans have developed the capacity to evaluate stories. But administrative lawyers have failed to pay attention to stories and thus have missed the opportunities to encourage a more enlightened approach to thinking about rulemaking and administrative expertise. Such an enlightened approach matters now more than ever.--Dan Ernst
