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A Multidimensional Problem

August 2015

Citation: 45 ELR 10783

Issue: 8

Author: Emily S. Bremer

In Taking Public Access to the Law Seriously: The Problem of Private Control Over the Availability of Federal Standards, Professor Nina Mendelson has done a great service, offering a strong and comprehensive argument for “why law needs to be public.” This comment and the Administrative Conference’s recommendation also agree that the policy goal should be to make incorporated materials freely available online. Where we part ways is with respect to the solution. Focusing exclusively on the public access dimension of the incorporation by reference conundrum, Professor Mendelson concludes that any solution relying on collaboration with private standards developers “should be out of bounds.” But the problem has several other dimensions—interests, both public and private, that must be considered if one is to design a policy that is workable and avoids unintended, negative consequences. Viewed from this perspective, public-private collaboration emerges as the policy prescription with the greatest promise. And there is substantial evidence that it is already working.

Emily S. Bremer is the Research Chief of the Administrative Conference of the United States. The views expressed here are those of the author and do not necessarily reflect those of the Administrative Conference, its committees, or its members.

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