Taking Public Access to the Law Seriously: The Problem of Private Control Over the Availability of Federal Standards

8 Pages Posted: 24 Jul 2015 Last revised: 25 Sep 2015

Date Written: July 22, 2015

Abstract

To save resources and build on private expertise, federal agencies have incorporated privately drafted consumer and environmental safety, benefits, testing, and other standards into thousands of federal regulations — but only by “reference.” Unlike the entire U.S. Code and the rest of the Code of Federal Regulations, freely available in depository libraries or online, access to the text of this regulatory law is under largely private control. Apart from the option to travel to a Washington, D.C. reading room, the private drafting organizations control access. Standards can be difficult to find and a reader must often pay a significant fee to see one. This brief article overviews the problem, as well as the reasons that underlie the intuition that law, in a democracy, needs to be readily, publicly available. Beyond the need of regulated entities to gain notice of their obligations, ready public access is needed for regulatory beneficiaries, including Medicare recipients, consumers of risky products, or neighbors of natural gas pipelines. The content, as well as the existence, of these standards can importantly affect beneficiary choices regarding what to purchase, where to live, and so forth. Meaningful public access is also critical for citizens to engage in public debate and to hold government accountable both for complying with the law and for devising it, particularly (though not only) when government relies on private organizations whose interests can be narrowly focused and processes closed. Moreover, when individuals have to pay a fee to read the law, it sends a damaging message that starkly contrasts with the long-established American tradition of widespread public access to the law. The article calls for meaningful levels of free public access to the text of these incorporated standards.

Suggested Citation

Mendelson, Nina, Taking Public Access to the Law Seriously: The Problem of Private Control Over the Availability of Federal Standards (July 22, 2015). Environmental Law Reporter, Vol. 45, No. 8, 2015, U of Michigan Public Law Research Paper No. 472, Available at SSRN: https://ssrn.com/abstract=2634603

Nina Mendelson (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States
734-936-5071 (Phone)
734-763-9375 (Fax)

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