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112 Mich. L. Rev. 737 (2013-2014)
Private Control over Access to the Law: The Perplexing Federal Regulatory Use of Private Standards

handle is hein.journals/mlr112 and id is 785 raw text is: PRIVATE CONTROL OVER ACCESS TO THE LAW: THE PERPLEXING FEDERAL REGULATORY USE OF PRIVATE STANDARDS Nina A. Mendelson* To save resources and build on private expertise, federal agencies have incor- porated privately drafted standards into thousands of federal regulations-but only by reference. These standards range widely, subsuming safety, benefits, and testing standards. An individual who seeks access to this binding law gen- erally cannot freely read it online or in a governmental depository library, as she can the U.S. Code or the Code of Federal Regulations. Instead, she gener- ally 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, under largely private control, is not formally secret, but it is ex- pensive and difficult to find. It raises the question of what underlies the intui- tion 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 natu- ral gas pipelines. Ready public access to the law is also critical to ensuring that federal agencies are meaningfully accountable for their decisions, through both 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 governmental adoption of regulatory law that is, in contrast to American law in general, harder to find and costly to access. Full assessment of the im- portance of public access to law both strengthens the case for reform of access barriers to incorporated-by-reference rules and limits the range of acceptable reform measures. TABLE OF CONTENTS INTRODUCTION .......................................................... 738 I. INCORPORATION BY REFERENCE OF PRIVATE STANDARDS ....... .748 A. The Use and Costs of Privately Developed Standards .......748 B. SDO Procedures .........................................753 Joseph L. Sax Collegiate Professor of Law, University of Michigan Law School. Particular thanks go to Nick Bagley, Jamie Conrad, Don Herzog, Riyaz Kanji, Ellen Katz, Jessica Litman, Bill Novak, Margo Schlanger, Peter Strauss, and my colleagues participating in the University of Michigan Law School Fawley Lunch Series and Governance Roundtable. 737

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