Best Practices

Abstract

In traditional administrative law, agencies pass rules and courts review them. But what if agencies stopped acting by rule and started leading by example? With best practices rulemaking - a theoretically voluntary way of coordinating administrative action both within and across agencies - leading by example is what agencies are increasingly doing. Although best practice rulemaking has been ignored by the legal literature, regulation through best practices has increased sevenfold in the past ten years in the federal government alone, touching every aspect of administrative law.

This paper describes and evaluates best practices rulemaking, tracking its origins in business management, its adoption by the public sector, and analyzing how it works in that sector, through a series of case studies. Although best practices purport to be best, there is nothing particularly best about them. The rulemaking technique is a way of obtaining common practices, not ideal ones. Accordingly, best practices rulemaking is therefore particularly useful when we want agencies to coordinate, but don't care much about the standard of coordination that they adopt. The paper concludes with a consideration of the future of best practices. As best practices rulemaking, along with other forms of horizontal, informal agency action, continues to grow, and grow apart from judicial supervision, Congress may ultimately wish to point the way to appropriate publicity and forms of consultation through an Informal Administrative Procedure Act.