Today’s Ad Law Reading Room entry is “Valuing Administrative Democracy,” by Brian D. Feinstein and Daniel E. Walters. Here is the abstract:

Public engagement has long sat at the heart of administrative law’s democratic aspirations. For proponents, opportunities for individuals to participate in agency decision-making help reconcile the administrative state with democratic ideals. Yet a tide of skepticism is swelling. The ascendant “abundance movement” argues that overemphasizing participatory procedures slows government action while delivering incommensurate benefits. Others—including most Supreme Court justices—cast presidential control as the sole credible means of securing agencies’ perceived legitimacy and accountability. Although proponents and critics alike rely on assumptions about the value that the public places on participatory mechanisms, little evidence exists about how people actually view these mechanisms and how they consider tradeoffs, including those involving procedurally caused delays.

This Article supplies that evidence. It presents results from experiments in which over 5,800 participants read agency policy vignettes that varied in their use of participatory tools. Some experiments also varied in terms of the reported length of the rulemaking process—a key cost of procedure that critics emphasize. Participants then assessed the agency’s accountability, legitimacy, fairness, and related qualities.

Across experiments, a consistent pattern emerges: people value agencies that invite and ensure robust participation. The largest shifts in attitudes occur when agencies move beyond basic notice-and-comment to offer structured deliberation or targeted outreach to underrepresented groups. The public’s appetite for meaningful voice is also remarkably durable; even when participatory mechanisms lengthen rulemaking by years, support for those tools remains strong. These findings indicate that the public values not only administrative efficiency but also a government that listens widely, thoughtfully, and carefully.

The policy implications are pragmatic: to strengthen agencies’ perceived connection to democratic values, officials should preserve notice-and-comment as a floor, improve representational balance, and deploy “thicker” engagement opportunities, especially early-stage deliberation among key stakeholders. They should also consider ways to eliminate the most extreme delays while also resisting the urge to streamline participatory procedure across the board. Administrative democracy’s future will hinge less on slogans for or against “procedure” and “participation” than on careful, evidence-based design choices that deliver opportunities for voice when the public is willing to wait for them.

Administrative law can be a frustrating field. Many of its core debates implicate questions that appear intractable: How many questions of law turn out to actually be questions of policy? At what level of stringency do the costs of arbitrary-and-capricious-style review begin to exceed its benefits? And, most centrally for “Valuing Administrative Democracy,” how should we think about the tradeoff between public participation and efficient government?

Feinstein and Walters do not purport to definitively resolve the “optimization problem” plaguing efforts to identify the mechanisms of participation that should be afforded to the public when agencies make consequential decisions. But their fascinating study does suggest that the American people value participation rights in a meaningful way, even when faced with information about participation’s costs. Deeply embedded within current controversies touching on presidential control, Trump 2.0, and the abundance movement, “Valuing Administrative Democracy” makes for an engaging and very worthwhile read.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.