The GovLab Selected Readings on CrowdLaw

Introduction

The public is beginning to demand — and governments are beginning to provide — new opportunities for the engagement of citizens on an ongoing basis as collaborators in public problem-solving rather than merely as voters. Nowhere is the explosion in citizen participation accelerating more than in the context of lawmaking, where legislators and regulators are turning to new technology to solicit both public opinion and know-how to improve the legitimacy and effectiveness of the legislative process.

Such participatory lawmaking, known as crowdlaw (also, CrowdLaw), is a tech-enabled approach for the collaborative drafting of legislation, policies or constitutions between governments and citizens. CrowdLaw is an alternative to the traditional method of lawmaking, which is typically done by the political elite — politicians, bureaucrats, and staff — working in legislatures behind closed doors, with little input from the people affected. Instead, this new form of inclusive lawmaking opens the legislative function of government to a broader array of actors.

From Brazil to Iceland to Libya, there is an explosion in new collaborative lawmaking experiments. Despite the growing movement, the field of participatory lawmaking requires further research and experimentation. Given the traditionally deep distrust of groups expressed in the social psychology literature on groupthink, which condemns the presumed tendency of groups to drift to extreme positions, it is not self-evident that crowdlaw practices are better and should be institutionalized. Also, depending on its design, crowdlaw has the potential to accomplish different normative goals, which are often viewed as being at odds, including: improving democratic legitimacy by giving more people a voice in the process, or creating better quality legislation by introducing greater expertise. There is a need to study crowdlaw practices and assess their impact.

To complement our evolving theoretical and empirical research on and case studies of crowdlaw, we have compiled these selected readings on public engagement in lawmaking and policymaking. For reasons of space, we do not include readings on citizen engagement or crowdsourcing and open innovation generally (see GovLab’s Selected Readings on Crowdsourcing Opinions and Ideas) but focus, instead, on engagement in these specific institutional contexts.

We invite you to visit Crowd.Law for additional resources, as well as:

CrowdLaw Design Recommendations

CrowdLaw Twitter List

CrowLaw Unconferences:

Annotated Readings

CrowdLaw Theory

Aitamurto, Tanja and Jorge Saldivar – Examining the Quality of Crowdsourced Deliberation: Respect, Reciprocity and Lack of Common-Good Orientation (Paper, 8 pages, 2017)

  • This paper examines the “deliberative quality of crowdsourced deliberation […] Analyzing data from two crowdsourced policy-making processes, [Aitamurto and Saldivar] found a good quality deliberation with respect, reciprocity, and storytelling according to the standards in the theory of deliberative democracy. [They] identified a group of super-deliberators, whose deliberation was above the average, and low-quality deliberators, whose deliberation was below the average. The findings show that even when crowdsourced policymaking was not designed for deliberation, it can facilitate a fairly high-quality democratic deliberation.”

Faria, Cristiano Ferri Soares de – The open parliament in the age of the internet: can the people now collaborate with legislatures in lawmaking? (Book, 352 pages, 2013)

  • Faria explores the concept of participatory parliaments, and how participatory and deliberative democracy can complement existing systems of representative democracy. Currently the first and only full-length book surveying citizen engagement in lawmaking.
  • As the World Bank’s Tiago Peixoto writes: “This is a text that brings the reader into contact with the main theories and arguments relating to issues of transparency, participation, actors’ strategies, and processes of institutional and technological innovation. […] Cristiano Faria captures the state of the art in electronic democracy experiences in the legislative at the beginning of the 21st century.”
  • Chapters 4 and 5, deep dive into two case studies: the Chilean Senate’s Virtual Senator project, and the Brazilian House of Representatives e-Democracy project.

Mulgan, Geoff – Big Mind: How Collective Intelligence Can Change Our World (Book, 280 pages, 2017)

  • In the Internet era, Mulgan suggests that it is an odd anachronism to assume that “intelligence resides primarily in the space inside the human skull.” Rather, he argues, technology is making it possible to organize and coordinate online group collaboration at large scale. This emergent phenomenon known as collective intelligence is the focus of Big Mind. The book’s central claim is that “every individual, organization or group could thrive more successfully if it tapped into a bigger mind—drawing on the brainpower of other people and machines.”
  • The second half of the book examines applications of collective intelligence, including in law and policymaking. He sees significant limits to collective intelligence for improving parliaments and legislatures.
  • Mulgan argues, “The general point is that what works best may not be a single system deduced from one set of absolute principles, but instead an assembly…These tend to work much better in the early stages of decision making, like influencing what is on agenda, proposing ideas, and scrutinizing options. They’re far harder to make work for the crucial stages of decision making—partly because of the numbers taking part are insufficient for legitimacy, and partly because of the interaction of public debate, political representation, and mass media that fuels democracy within nation-states is far harder to orchestrate on a global scale.” (190)

Simon, Julie, Theo Bass, Victoria Boelman, and Geoff Mulgan (Nesta) – Digital Democracy: The Tools Transforming Political Engagement (Report, 100 pages, 2017)

  • Reviews the origins, implementation, and outcomes of 13 case studies representing the best in digital democracy practices that are consistently reviewed. The report then provides six key themes that underpin a “good digital democracy process.” Particularly instructive are the interviews with actors in each of the different projects, and their accounts of what contributed to their project’s successes or failures. The Nesta team also provides insightful analysis as to what contributed to the relative success or failure of the initiatives.

Case Studies on CrowdLaw in Legislatures

Aitamurto, Tanja and Kaiping Chen – The Value of Crowdsourcing in Public Policy-Making: Epistemic, Democratic and Economic Value (Journal article, 18 pages, 2017)

  • This piece provides a three-dimensional framework for the value proposition of crowdsourced policymaking. The three dimensions are:
    • democratic value (e.g. transparency, accountability, inclusiveness, deliberation, and empowerment),
    • epistemic value (the knowledge-producing properties of the crowdsourced process), and
    • economic value (efficient revelation of citizen needs and lower cost of public goods provision).
  • The authors “show how these tenets of value creation are manifest in crowdsourced policymaking by drawing on instances of crowdsourced lawmaking, and [they] also discuss the contingencies and challenges preventing value creation.”

Aitamurto, Tanja and Hélène Landemore – Crowdsourced Deliberation: The Case of the Law on Off-Road Traffic in Finland (Journal article, 23 pages, 2016)

  • In this article, Aitamurto and Landemore examine the “emergence of democratic deliberation in a crowdsourced law reform process. The empirical context of the study is a crowdsourced legislative reform in Finland, initiated by the Finnish government. The findings suggest that online exchanges in the crowdsourced process qualify as democratic deliberation according to the classical definition. [They] introduce the term ‘crowdsourced deliberation’ to mean an open, asynchronous, depersonalized, and distributed kind of online deliberation occurring among self-selected participants in the context of an attempt by government or another organization to open up the policymaking or lawmaking process.”
  • The authors find that, “despite the lack of clear incentives for deliberation in the crowdsourced process, crowdsourcing functioned as a space for democratic deliberation, namely an exchange of arguments among participants characterized by a degree of freedom, equality, and inclusiveness.”
  • The team then ran an additional experiment to explore this and other hypotheses about the deliberative process, discussed in this report: Crowdsourced off-road traffic law experiment in Finland

Capone, Gabriella and Beth Simone Noveck – “CrowdLaw”: Online Public Participation in Lawmaking, (Report, 71 pages, 2017)

  • Capone and Noveck provide recommendations for the thoughtful design of crowdlaw initiatives, a model legislative framework for institutionalizing legislative participation, and a summary of 25 citizen engagement case studies from around the world — all in an effort to acknowledge and promote best crowdlaw practices. The report, written to inform the public engagement strategy of the Autonomous Community of Madrid, can apply to crowdlaw initiatives across different contexts and jurisdictions.
  • CrowdLaw advocates for engagement opportunities that go beyond citizens suggesting ideas, and inviting integration of participation throughout the legislative life-cycle — from agenda-setting to evaluation of implemented legislation. Additionally, Capone and Noveck highlight the importance of engaging with the recipient public institutions to ensure that participatory actions are useful and desired. Finally, they lay out a research and experimentation agenda for crowdlaw, noting that the increased data capture and sharing, as well as the creation of empirical standards for evaluating initiatives, are integral to the progress and promise of crowdlaw.
  • The 25 case studies are organized by a six-part taxonomy of: (1) the participatory task requested, (2) the methods employed by the process, (3) the stages of the legislative process, (4) the platforms used, from mobile to in-person meetings, (5) the institutionalization or degree of legal formalization of the initiative, and (6) the mechanisms and metrics for ongoing evaluation of the initiative

Christensen, Henrik Serup, Maija Karjalainen, and Laura Nurminen – Does Crowdsourcing Legislation Increase Political Legitimacy? The Case of Avoin Ministeriö in Finland (Journal article, 22 pages, 2015)

  • Against the backdrop of participatory lawmaking and citizen engagement being used to mitigate citizen distrust in government, this work “contributes to this research agenda by examining the developments in attitudes among the users on the Finnish website Avoin Ministerio (‘Open Ministry’), which orchestrates crowdsourcing of legislation by providing online tools for deliberating ideas for citizens’ initiatives. […] The data include 421 respondents who filled in the questions concerning political and social attitudes. The results suggest that crowdsourcing legislation has yet to affect political legitimacy in a positive manner, but it has the potential to do so.”

Souza, Carlos Affonso, Fabro Steibel, and Ronaldo Lemos – Notes on the creation and impacts of Brazil’s Internet Bill of Rights (Journal article, 23 pages, 2017)

  • The authors trace the precursors of Brazil’s Internet Bill of Rights — “the result of the first large-scale initiative spearheaded by the [Brazilian] government to use the internet as a way to expand and diversify the voices in the law-making process.” Specifically, they describe the emergence of the movement for a crowdsourced lawmaking process, as well as the challenges and developments throughout the process. The passage of the Bill, had repercussions not only for Internet policy abroad, such as inspiring a similar movement to create a law in Italy, but it also demonstrated that the Internet was itself a tool to crowdsource such policies.
  • Despite being “the first initiative from the Federal Government to crowdsource the making of a Draft Bill of Law,” the government was able to successfully integrate stakeholders and diverse opinions into the legislative process. The full process from the proposal of deliberations including citizens to the passage of the bill took seven years (2007-2014). Additionally, it demonstrates that civil society, and even non-legislative arenas, as loci for citizen engagement in lawmaking: “crowdsourcing tools were not implemented by default, based on institutional decisions made by those running the CPICIBER mechanism of participation. As such, multistakeholder participation still existed, but it took place outside the policymaking venue, that is, on social media, in the newspapers, and along the Congress corridors.”

See above: Faria, Cristiano Ferri Soares de – The open parliament in the age of the internet: can the people now collaborate with legislatures in lawmaking? (Book, 352 pages, 2013)

CrowdLaw and Constitution Drafting

Suteu, Silvia – Constitutional Conventions in the Digital Era: Lessons from Iceland and Ireland (Journal article, 26 pages, 2015)

  • This piece from the Boston College International & Comparative Law Review “assesses whether the novelty in the means used in modern constitution-making translates further into novelty at a more substantive level, namely, in the quality of the constitution-making process and legitimacy of the end product. Additionally, this Essay analyzes standards of direct democratic engagements, which adequately fit these new developments, with a focus on the cases of Iceland and Ireland.”
  • It provides four motivations for focusing on constitution-making processes:
    • legitimacy: a good process can create a model for future political interactions,
    • the correlation between participatory constitution-making and the increased availability of popular involvement mechanisms,
    • the breadth of participation is a key factor to ensuring constitutional survival, and
    • democratic renewal.
  • Suteu traces the Icelandic and Irish processes of crowdsourcing their constitutions, the former being known as the first crowdsourced constitution, and the latter being known for its civil society-led We the Citizens initiative which spurred a constitutional convention and the adoption of a citizen assembly in the process.

CrowdLaw and Regulations

Benjamin, Stuart M. – Evaluating E-Rulemaking: Public Participation and Political Institutions (Journal article, 48 pages, 2006)

  • Benjamin’s work “considers e-rulemaking in a broader institutional context and directly addresses the desirability of the proposed e-rulemaking initiatives. The Article finds that there are good reasons to believe that e-rulemaking initiatives’ costs outweigh their benefits, but that it would be premature to settle on that conclusion. The Article ultimately advocates modest experimentation with e-rulemaking, both to allow for further evaluation of e- rulemaking and to provide additional data about the rulemaking process more generally.”
  • “The federal government has moved away from individual agency experimentation and toward a uniform set of e-rulemaking protocols. Such centralization may have benefits, particularly insofar as it reduces the costs for individuals to participate in agency actions. But [Benjamin’s] discussion highlights that it has significant costs, because it minimizes the divergence among agencies and thus the possibilities for experimentation. If the choice is between across-the-board implementation of further e-rulemaking initiatives or not, this Article suggests the latter choice. But modest experimentation is the best choice.”

Johns, Melissa, and Valentina Saltane (World Bank Global Indicators Group) – Citizen Engagement in Rulemaking: Evidence on Regulatory Practices in 185 Countries (Report, 45 pages, 2016)

  • This report “presents a new database of indicators measuring the extent to which rulemaking processes are transparent and participatory across 185 countries. […] [It] presents a nses ew global data set on citizen engagement in rulemaking and provides detailed descriptive statistics for the indicators. The paper then provides preliminary analysis on how the level of citizen engagement correlates with other social and economic outcomes. To support this analysis, we developed a composite citizen engagement in rulemaking score around the publication of proposed regulations, consultation on their content and the use of regulatory impact assessments.”
  • The authors outline the global landscape of regulatory processes and the extent to which citizens are kept privy to regulatory happenings and/or able to participate in them.
  • Findings include that: “30 of the sampled economies regulators voluntarily publish proposed regulations despite having no formal requirement to do so” and that, “In 98 of the 185 countries surveyed for this paper, ministries and regulatory agencies do not conduct impact assessments of proposed regulations.” Also:  “High-income countries tend to perform well on the citizen engagement in rulemaking score.”

Liu, Helen K. – Crowdsourcing Government: Lessons from Multiple Disciplines (Journal Article, 12 pages, 2017)

  • Though in the context of the broader public crowdsourcing conversation, Liu’s article provides a deep overview of how crowdsourced law and policymaking efforts fit into broader trends of crowdsourcing in government. Additionally, Liu provides a framework for organizing such efforts and practices, and the typology helps to contextualize crowdlaw amongst other classes of government crowdsourcing.

Noveck, Beth Simone – The Electronic Revolution in Rulemaking (Journal article, 90 pages, 2004)

  • Noveck addresses the need for the design of effective practices, beyond the legal procedure that enables participation, in order to fully institutionalize the right to participate in e-rulemaking processes. At the time of writing, e-rulemaking practices failed to “do democracy,” which requires building a community of practice and taking advantage of enabling technology. The work, which focuses on public participation in informal rulemaking processes, explores “how the use of technology in rulemaking can promote more collaborative, less hierarchical, and more sustained forms of participation — in effect, myriad policy juries — where groups deliberate together.”
  • Noveck looks to reorient on the improvement of participatory practices that exploit new technologies: a design-centered approach as opposed a critique the shortcomings of participation. Technology can be a critical tool in promoting meaningful, deliberative engagement among citizens and government. With this, participation is to be not a procedural right, but a set of technologically-enabled practices enabled by government.

Peña-López, Ismael –  decidim.barcelona, Spain. Voice or chatter? Case studies (Report, 54 pages, 2017)

  • Peña-López analyzes the origins and impact of the opensource decidim.barcelona platform, a component of the city’s broader movement towards participatory democracy. The case is divided into “the institutionalization of the ethos of the 15M Spanish Indignados movement, the context building up to the decidim.barcelona initiative,” and then reviews “its design and philosophy […] in greater detail. […] In the final section, the results of the project are analyzed and the shifts of the initiative in meaning, norms and power, both from the government and the citizen end are discussed.”
  • A main finding includes that “decidim.barcelona has increased the amount of information in the hands of the citizens, and gathered more citizens around key issues. There has been an increase in participation, with many citizen created proposals being widely supported, legitimated and accepted to be part of the municipality strategic plan. As pluralism has been enhanced without damaging the existing social capital, we can only think that the increase of participation has led to an improvement of democratic processes, especially in bolstering legitimacy around decision making.”

Prpic, John, Araz Taeihagh, and James Melton – The Fundamentals of Policy Crowdsourcing (Journal article, 22 pages, 2015)

  • After a review of crowdsourcing concepts, this article provides a crowdsourcing framework (p. 348) that helps to organize crowdsourcing literature according to its method and place in the policy cycle. (The article “combine[s] the preceding analyses to create an overarching policy crowdsourcing framework that includes the different types of crowdsourcing techniques merged with the various stages of the policy cycle.”)
  • Specifically, the article organizes according to these six stages of the policy cycle: agenda setting, problem definition, policy design, policy implementation, policy enforcement, and policy evaluation and then by 3 crowdsourcing types:
    • virtual labor market places,
    • tournaments, and
    • open collaboration.

US Government & Nonprofits – US public participation playbook (Open source guide, 18 pages, 2014)

  • The U.S. Public Participation Playbook is a “resource for government managers to effectively evaluate and build better services through public participation using best practices and performance metrics.” It is an example of how participatory tools are being used by government departments and agencies.
  • For a given play, e.g. “Play 2: Understand your participants and stakeholder groups,” there is a checklist of considerations, resources, and relevant US case studies.