The Problem with Words: Plain Language and Public Participation in Rulemaking

37 Pages Posted: 12 Feb 2015  

Cynthia R. Farina

Cornell Law School

Mary Newhart

Cornell Law School

Cheryl L. Blake

Cornell University - Law School

Date Written: February 12, 2015

Abstract

The connection between more understandable rulemaking materials and broader, better public participation seems obvious, Yet the series of Presidential and statutory plain-language directives issues over the last 5 decades have not even mentioned the relationship of comprehensibility to participation — until very recently. In 2012, the Office of Information and Regulatory Affairs (OIRA) issued “guidance” instructing that “straightforward executive summaries” be included in “lengthy or complex rules.” OIRA reasoned 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 2010-2014, we examine the effect of the executive summary requirement. We find that the use of executive summaries increased substantially compared to the modest executive-summary practice pre-Guidance. We also find that 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 included with the Guidance is mixed. Our most significant finding is the stunning failure of the new executive summary requirement to produce more comprehensible rulemaking information. Standard readability measures place the executive summaries at a level of difficulty that would challenge even college graduates. Moreover, executive summaries are, on average, even less readable than the remainder of the rule preambles that they are supposed to make accessible to a broader audience.

This article is part of the symposium commemorating the 50th anniversary of the Administrative Conference of the United States.

Keywords: Rules, government, public law, political institutions, language

Suggested Citation

Farina, Cynthia R. and Newhart, Mary and Blake, Cheryl L., The Problem with Words: Plain Language and Public Participation in Rulemaking (February 12, 2015). George Washington Law Review, 2015, Forthcoming; Cornell Legal Studies Research Paper No. 15-08. Available at SSRN: https://ssrn.com/abstract=2564100

Cynthia R. Farina (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States
607-225-5879 (Phone)
607-255-7193 (Fax)

Mary Newhart

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Cheryl L. Blake

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853

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