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6 - Comprehension Asymmetries in Administrative Process

from Part II - Application

Published online by Cambridge University Press:  21 June 2019

Wendy Wagner
Affiliation:
University of Texas School of Law
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Summary

The legitimacy of administrative process is advanced in part by accountability processes that involve robust stakeholder participation. Yet empirical studies reveal that the administrative state is becoming increasingly inhospitable to meaningful engagement by some stakeholders, due in part to the size and complexity of the rulemaking process. This chapter argues that at least part of the blame for the resulting incomprehensible rules can be attributed to the design of administrative process itself. Despite its commitment to accountability and participation, there are few-to-no requirements to ensure that rulemaking deliberations involve cooperative communication. Indeed, there are a number of ways that legal requirements tacitly encourage incomprehensibility in legal filings and communications. After discussing the problems with this legal design and the resultant implications for the goals of administrative process, the chapter concludes with proposals for reform.

Type
Chapter
Information
Incomprehensible!
A Study of How our Legal System Encourages Incomprehensibility, Why It Matters, and What We Can Do About It
, pp. 158 - 203
Publisher: Cambridge University Press
Print publication year: 2019

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