Cynthia R. Farina, Mary Newhart, and Cheryl L. Blake, all of Cornell, have written The Problem with Words: Plain Language and Public Participation in Rulemaking, George Washington Law Review (2015 Forthcoming). Here's the 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
