83 Geo. Wash. L. Rev. 1358 (2014-2015)
The Problem with Words: Plain Language and Public Participation in Rulemaking

handle is hein.journals/gwlr83 and id is 1432 raw text is: 




The Problem with Words: Plain Language

                 and Public Participation

                          in   Rulemaking


     Cynthia  R.  Farina,*  Mary   J. Newhart,**   and  Cheryl   Blake***

                                  ABSTRACT
         This Article, part of the special issue commemorating the fiftieth anniver-
    sary of the Administrative Conference of the United States (ACUS), situates
    ACUS's   recommendations for improving public rulemaking participation in
    the context of the federal plain language movement. The connection be-
    tween broader, better public participation and more comprehensible rulemak-
    ing materials seems obvious, and ACUS  recommendations  have recognized
    this connection for almost half a century. Remarkably, though, the series of
    presidential and statutory plain-language directives on this topic have not even
    mentioned  the relationship of comprehensibility to participation until very re-
    cently. In 2012, the Office of Information and Regulatory Affairs (OIRA)
    issued Executive Summary  Guidance, instructing that straightforward ex-
    ecutive summaries be included in lengthy or complex rules. OIRA  rea-
    soned that [p]ublic participation cannot occur ... if members of the public
    are unable to obtain a clear sense of the content of [regulatory] requirements.
         Using a novel dataset of proposed and final rule documents from 2010
     through 2014, this Article examines the effect of the executive summary re-
     quirement. The results show that the use of executive summaries increased
     substantially compared with the modest executive-summary practice pre-Gui-
     dance. Additionally, agencies have done fairly well in providing summaries
     for lengthy rules. Success in providing the summary in complex rules,
     and in following the standard template recommended  by the Guidance  is
     mixed. The most significant finding is the stunning failure of the new execu-
     tive summary requirement to produce more comprehensible rulemaking infor-
     mation. Standard readability measures place the executive summaries at a
     level of difficulty that would challenge even college graduates. Moreover, ex-
     ecutive summaries are, on average, even less readable than the remainder of
     the rule preambles that they are supposed to make more  accessible to a
     broader audience.

     * William G. McRoberts Research Professor in Administration of the Law, Cornell Law
School; Senior Researcher, Cornell eRulemaking Initiative (CeRI). Special thanks go to: Gi-
ancarlo Lee, Dr. Veronica Maidel, and Andrew Lai for their work obtaining the data and statisti-
cal analyses; Cornell Law research librarians Matthew M. Morrison and Margaret Ambrose, who
unearthed key bits of the history recounted in Part I; and David Pritzker, Deputy General Coun-
sel of ACUS, for sharing his encyclopedic knowledge of ACUS and the results of his persistent
digging into its past.
    **  Adjunct Professor of Law, Cornell Law School; CeRI Executive Director and Senior
 Researcher.
   ***  CeRI e-Government Fellow, Cornell J.D. 2013.

 September 2015 Vol. 83 No. 4/5


1358

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