Incorporated By Reference: Who Owns the Law?

On Tuesday, August 9, 2016, after debate from both sides of the issue, the ABA House of Delegates passed a resolution calling on Congress to require federal agencies to provide free online read-only access to all privately drafted materials that are incorporated by reference into federal regulations.

When many federal agencies write regulations, the specific standards for items ranging from toys and cribs to nuclear power plants are written by private entities with expertise in those fields. In other words, the details of regulations (which have the force of law) are being written not by elected legislators, nor by agency employees, but by private industry associations. Currently, the Director of the Federal Register requires federal agencies to state how they are making those incorporated standards available to the public, but the full text is still not always available online, and copies may cost thousands of dollars.

Arguably, when industry groups have hard-earned expertise and non-governmental status, the standards they write are their own intellectual property for which they are entitled to charge a fee for access. On the other hand, democracy and the rule of law arguably depend on all people being freely able to read and discuss the laws to which they are subject, and some say “read-only access” to the law would be insufficient to support this freedom.

Do you think the ABA was right to pass this resolution? Do you think it goes too far, or not far enough? Tell us your thoughts on Facebook or Twitter.