Recoding America: Why Government Is Failing in the Digital Age and How We Can Do Better

by Jennifer Pahlka

The formal process requires that agencies provide private parties potentially affected by a new rule with an oral hearing in which they can present their witnesses and cross-examine opposing ones, taking the judicial metaphor entirely literally. The United States Department of Agriculture tried this when it was about to issue a rule regarding the minimum peanut content in peanut butter. Advocates wanted it to be at least 90 percent peanuts, manufacturers wanted to require only 87 percent peanuts, and adjudicating that 3 percent difference under the formal rulemaking process took the Food and Drug Administration twelve years of the 1960s and 1970s. The case went almost all the way to the Supreme Court, and the oral hearing alone took twenty weeks and produced a 7,736-page transcript.12 (The advocates ultimately prevailed.)