Wendy Wagner

If you have ever advocated for a greater “public” role in administrative law without specifying who that public actually is or how they might realistically engage, then Nikhil Menezes’ and David Pozen’s terrific new article, Looking for the Public, is a must-read. Menezes and Pozen call out our bad habits, trace the many adverse consequences that result from our imprecision, and challenge us to do better while offering concrete suggestions for how we might do so. Their analysis makes it clear that until we address the phantom public problem, well-meaning efforts to create more inclusive or public-spirited policies and processes will be missing the most critical ingredient of all—evidence that the policies or processes actually benefit a “credible public.”

Looking for the Public begins by tracing how, despite our reliance on the public as the lodestar for virtually every policy and process in administrative law, lawmakers and scholars regularly appeal to the public without providing evidence-based accounts of who the public is or how they might engage. Efforts to ground policy or accountability mechanisms in “public opinion,” the “public interest,” and “public participation” often neglect to locate these same publics, while at the same time steadfastly ignoring mounting literature that suggests the public is absent or not credibly represented.

Perhaps if there were a shared normative vision of who the public is and how they should engage, some of this imprecision might be harmless. But as Menezes and Pozen point out, there is no shared vision of public engagement. To make this point, they recount the dueling positions taken by Walter Lippmann and John Dewey and their followers. Lippmann considered public engagement to be doomed from the start given the complexity of the issues and collective action problems. He advocated instead for executive leadership and natural law constraints. (P.19). Even the more optimistic Dewey acknowledged many practical realities that undermine meaningful public engagement. He proposed in place of the undefined public various “designed activation strategies [that . . .] aim to create conditions under which effective publics might emerge.” (P.24 emphasis added).

If we appeal to an undefined “public” to guide policies and processes, serious problems are likely to follow. In the third part of Looking for the Public, Menezes and Pozen document a variety of adverse consequences, many of which are growing increasingly urgent as voters become more polarized and leadership more centralized. For example, just as Lippmann and followers predict, the “phantom” public is routinely used as a makeweight by elites to advance their own ends and goals. At the same time, processes referencing an unspecified “public” end up defaulting to the free market, providing these same elites with still more ways to torque policies in their favor.

To address these and many other hazards, Menezes and Pozen insist that, going forward, public officials and commentators should speak more clearly about which “public” they have in mind, and “appeals to the public should come with evidence or hypotheses on how the public in question can fulfill its designated function.” (P.40). To that end, they draw upon deliberative democratic theory to offer a suggestion for how we might accomplish this: by designing “credible publics” or “mini-publics” (e.g., representative panels or juries) as a substitute for the phantom public. (P.42). Institutionalizing mini-publics would provide, at least to some extent, an empirically-based approach for identifying what a representative slice of the public actually thinks or wants on a specific topic, as well as engaging the public as co-collaborators in authoring policies.

Looking for the Public is overflowing with insights and other goodies, but two contributions bear particular spotlighting. First, in their deep dive into the role of the “phantom public” over time, Menezes and Pozen discover that the public’s role in our government has steadily drifted from “author” to “monitor.” Innovations that situated the public as a collaborator in authoring policies in our democracy, such as constitutional conventions, the use of congressional petitions, criminal juries, and citizens’ assemblies, are now largely obsolete. Instead, today’s institutional processes engage the public primarily at the backend—as monitors through familiar notice and comment, opinion polls, and the like. As the authors conclude, “[t]he late twentieth-century shift from authors to monitors means that ordinary Americans today almost never get to pose, much less decide, specific questions of law or policy through formal procedures.” (P.39).

A second stand-out contribution is Menezes’ and Pozen’s pragmatic response to this problem—urging the deployment of mini-publics to begin to fill the void. Mini-publics take many forms but generally are composed of a representative subgroup of the population assembled to deliberate on topics and inform governmental processes. The authors immerse the reader in a surprisingly large theoretical and empirical literature advancing this idea and then offer specific suggestions for how mini-publics might be deployed in the future. For example, mini-publics could be assembled to resolve ambiguities in the texts of ballot initiatives so that presiding courts cannot make up an underlying public sentiment on their own and attribute their policy choices to “the people.” (P.49). Or “mini-publics” could be assembled to play an “authorial” role in helping agencies or even Congress draft agendas, ideas, and policies. (Pp. 50-51).

In advocating for a greater role for credible publics, Menezes and Pozen acknowledge there are substantial challenges ahead. In my own field of environmental law, for example, there is a long history of manipulating expert panels, which could presumably carry over to institutionalizing the use of mini-publics as well. Even first-order choices about the type of information to share with a mini-public are susceptible to bias and could have profound implications for how mini-publics think about problems. Yet these and other worries are exactly what Menezes and Pozen hope to anticipate and counteract in urging a research and reform agenda.

Looking for the Public never finds the public. As the authors point out, the public is both nowhere and everywhere. But by exposing the phantom for what it is, Menezes and Pozen challenge those of us eager for more inclusive policies and processes to design institutional structures that insist on the need for “credible publics” at the start.