Technical Standards Meet Administrative Law: A Teaching Guide on Incorporation by Reference

71 Admin. L. Rev. 315, 2019

Notre Dame Legal Studies Paper No. 1941

39 Pages Posted: 17 Jul 2019 Last revised: 26 Jul 2019

Date Written: July 16, 2019

Abstract

When an agency incorporates by reference, it promulgates a rule that identifies—but does not reprint—material already published elsewhere. The incorporated materials thus become binding law without actually being printed in the agency's regulations. Sometimes the incorporated materials are privately developed technical standards, which are often copyrighted and available only for a fee. This restriction on access undermines transparency and public participation in the rulemaking process. Finding a solution is challenging because the problem is multidimensional, implicating public policy in the areas of administrative law, federal standards law and policy, and copyright.

This teaching guide is part of module that offers law faculty the information, plans, and resources needed to introduce students to incorporation by reference. The issue offers a versatile teaching tool that can be used to engage students—in long or short form—in various law school courses in the areas of Administrative Law, Regulatory Law & Policy, Law & Technology, and Legal Theory.

Keywords: incorporation by reference, standards, voluntary consensus standards, regulations, rulemaking, publication requirements, copyright, intellectual property, takings, statutory interpretation, teaching guide

JEL Classification: K23

Suggested Citation

Bremer, Emily S., Technical Standards Meet Administrative Law: A Teaching Guide on Incorporation by Reference (July 16, 2019). 71 Admin. L. Rev. 315, 2019, Notre Dame Legal Studies Paper No. 1941, Available at SSRN: https://ssrn.com/abstract=3420870

Emily S. Bremer (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States
5746311511 (Phone)

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