Private Control Over Access to the Law: The Perplexing Federal Regulatory Use of Private Standards

Nina A. Mendelson

4/30/2014
(Original Publish Date: 12/12/2013)

To save resources and build on private expertise, federal agencies have incorporated privately drafted standards into thousands of federal rules - but only by “reference.” These standards range widely, subsuming safety, benefits, and testing standards. An individual who seeks access to this binding law generally cannot freely read it online or in a government depository library, as she can the U.S. Code or Code of Federal Regulations. Instead, she generally must pay a significant fee to the drafting organization or else she must travel to Washington, D.C., to the Office of the Federal Register’s reading room. This law is not formally “secret,” but it is expensive and difficult to find. It raises the question of what underlies the intuition that law, in a democracy, needs to be readily, publicly available. Previous analyses of the need for publicity have focused almost wholly on the need of regulated entities for notice of their obligations. This article assesses several other considerations, including notice to regulatory beneficiaries, such as Medicare recipients, consumers of dangerous products, and neighbors of natural gas pipelines. Ready public access to the law also is critical to ensure that federal agencies are meaningfully accountable for their decisions, both through internal and external mechanisms, including voting, political oversight, and agency procedures. The need for ready public access is at least as strong in this collaborative governance setting as when agencies act alone. Finally, expressive harm - a message inconsistent with core democratic values - is likely to flow from government adoption of regulatory law that is, in contrast to American law in general, harder to find and costly to access. These considerations should prompt a focus not just upon whether law is public, but how public it is. Full assessment of the importance of public access to law both strengthens the case for reform of access barriers to incorporation-by-reference rules and limits the range of acceptable reform measures.