I came across this gem while sifting through new SSRN Law Review releases :

“Debate: Collaborative Environmental Law: Pro and Con.” Eric W. Orts, University of Pennsylvania - Legal Studies Department and Cary Coglianese, University of Pennsylvania Law School. University of Pennsylvania Law Review PENNumbra, Vol. 156, p. 289, 2007

Granted, this isn’t exactly analogous to this or other related ‘open-source’ policymaking and large-scale argumentation projects. The authors are debating the merits of environmental mediation where the regulatory authority attempts to bring together “not only government officials (and their designated scientific and economic experts), but also the representatives of a range of interests in civil society who will be affected by legal rules and decisions concerning a specific environmental problem, including businesses, citizens’ groups, and nongovernmental organizations” in the hopes that better policy will result.

However, several points struck me as relevant, especially this (abridged) list of criticisms from Prof. Coglianese:

On the contrary, what we know from past attempts at collaborative environmental law is that making agreement the goal often introduces one or more of at least five types of policy problems.

1. Tractability over Importance
   When agreement is the goal, collaborative groups tend to give more attention to those issues that are most tractable—not necessarily those that are most important…
2. Imprecision
   People can often more easily reach agreement over imprecise terms. Each side can interpret vague words or broad principles in a light favorable to its own interests, each thinking it has won more (or lost less) than its counterparts think…
3. Lowest Common Denominator
   When securing agreement becomes the primary aim, each party effectively gains a veto over the outcome. If an agreement does result, it is likely to reflect little more than the lowest common denominator of the various parties…
4. Increased Time and Resources
   As Professor Orts notes, collaborative environmental law has been criticized for taking longer to generate decisions. If each party effectively holds a veto, then much time will be needed for all negotiating parties to present their concerns and hear how others respond…
5. Additional Conflict
   Although collaborative environmental law seeks to resolve conflict, it actually can add new and unproductive sources of controversy. For example, conflicts arise over who gets to participate in collaborative groups; in some cases, lawsuits have been threatened or even filed when organizations are not invited to sit at the negotiation table.