In “Illuminating Regulatory Guidance,” Edward B. Shils Professor of Law Cary Coglianese stresses the importance of public accessibility to administrative agency guidance documents and offers practical guidance on how to enhance that public access.
The article draws on a report Coglianese prepared for the Administrative Conference of the United States (ACUS), which informed a series of recommendations made by ACUS to promote greater guidance accessibility.
Coglianese, an expert in administrative law and regulatory processes, explains that the goal of administrative guidance documents is to better inform the public about important programs, policies, and rules of the agency. If the documents aren’t readily accessible to the public, he writes, guidance could become what others have called “regulatory ‘dark matter.’”
Coglianese outlines why legal requirements have generally failed in the past to ensure that guidance documents are accessible, notably that these requirements are not self-enforcing.
“As a result,” he writes, “guidance availability is ultimately a managerial challenge for agencies – dependent on the adoption of internal disclosure practices – as much as it is a problem with a legal or technological fix.”
Coglianese suggests a series of steps for agencies to bring their documents better into light, taking into account four key criteria for assessing guidance management: comprehensiveness, currency, accessibility, and comprehensibility.
“Given the important role that guidance plays in the modern administrative state, meaningful governmental transparency today dictates that agencies take seriously their responsibility to manage the production and release of their guidance documents in a manner that makes them consistently and readily available to the public,” Coglianese writes.
Coglianese specializes in the study of administrative law and regulatory processes. He was a founding editor of the peer-reviewed journal Regulation & Governance, and he founded and continues to serve as advisor to the Penn Program on Regulation’s widely read daily publication, The Regulatory Review.
His research and scholarship focuses on the empirical evaluation of alternative processes and strategies in the role of public participation, technology, and business-government relations in policy-making.
Coglianese’s books include Achieving Regulatory Excellence (Brookings Institution Press, 2016); Does Regulation Kill Jobs? (University of Pennsylvania Press, 2014); Regulatory Breakdown: The Crisis of Confidence of US Regulation (University of Pennsylvania Press, 2012); Import Safety: Regulatory Governance in the Global Economy (University of Pennsylvania Press, 2009); Regulation and Regulatory Processes (Ashgate, 2007); and Leveraging the Private Sector: Management-Based Strategies for Improving Environmental Performance (Routledge, 2006).
He has also recently written on climate change policy, public participation and transparency in federal rulemaking, the use of artificial intelligence by government agencies, and voluntary environmental programs.