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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
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
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.
INTRODUCTION .......................................................... 738
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.


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