Agencies and stakeholders have incentives to speak to each other incomprehensibly.
One cannot read Incomprehensible! without vigorous head-nodding. The book focuses on the everyday legal complexities that surround us in both our daily lives and our policymaking system—what Wendy Wagner calls incomprehensibilities. Why is it that audiences are routinely inundated with incomprehensible text that they have neither the time, skill, nor incentive to understand?
I found myself updating my smartphone while reading the book and realized that I had blindly clicked “Agree” on the terms of service without any meaningful understanding of exactly what I had agreed to—incomprehensibility at work!
We all routinely encounter these incomprehensibilities, and are often annoyed by them. Yet somehow we have resigned ourselves to the notion that this is how it has to be.
Wagner is much more sanguine than the rest of us, arguing that there is a path toward comprehensibility, albeit one that requires numerous complex policy reforms. She takes aim squarely at the legal system, highlighting how incomprehensibility is the norm in all kinds of contexts, whether in consumer protection law or in the lawmaking process in Congress. Her approach is methodical, focusing on the incentives for speakers to be either incomprehensible or clear based on the capabilities of different audiences. She not only asks why incomprehensibility persists, but also explores what we can do about it.
All the chapters are worth a read, but I was particularly drawn to the sixth chapter, in which Wagner discusses incomprehensibility in the context of the process by which regulatory agencies craft their regulations. Here, Wagner highlights a fundamental communication problem between agencies and their stakeholders: Agencies write incomprehensible rules that are inaccessible to stakeholders, and stakeholders, in turn, write incomprehensible comments that are inaccessible to agencies. These communication gaps create all manner of problems, including imbalances in the types of entities that participate in the notice-and-comment process and a focus on information processing rather than problem-solving. Still worse is that no side truly understands the other, resulting in policy outcomes that are overly complex and which ultimately devalue the entire regulatory system.
Wagner points to a number of causes of incomprehensibility in agency rulemaking. From the agency’s perspective, legal principles such as those calling for hard look judicial review, or for final rules to reflect the logical outgrowth of proposed rules, push agencies toward long, documented, and overly legalistic rulemakings. Pressure from the political branches, including the layering of additional procedural and analytical requirements on agency rulemaking, also contributes to incomprehensible rules.
For the stakeholders, legal requirements also drive them toward incomprehensibility. Specifically, the way they can preserve their ability to sue the agency later on is to be “overly diligent (or perhaps obsessive) in ensuring that every conceivable concern is detailed” in their comments.
Wagner proposes three policy reforms to encourage comprehensibility in the rulemaking process. First, legal doctrines that reward incomprehensibility need to be amended. Second, rules that are comprehensible should be granted greater legal deference by the courts. Third, agencies should take active steps to encourage balance in stakeholder participation, such as by using proxy representatives for diffuse groups.
These are sensible proposals, and reformers in Congress would be well-advised to give them close scrutiny. Unfortunately, recent reform bills introduced in Congress have not focused on the comprehensibility aspect of rulemaking that Wagner identifies. Furthermore, prior legislative efforts to encourage “plain English” in rulemakings have seemingly failed to achieve their intended effect.
But legislative reforms are likely to be inherently limited. Incomprehensibility is a symptom of a more fundamental problem in the rulemaking process. Rulemakings, particularly those that are likely to be challenged in court, create winners and losers. Put simply, rules are the products of contested decisions—often Congress delegated an issue to the agency precisely because it did not want to ensnare itself in a messy arbitration between stakeholders. Agencies are doing this dirty work, and stakeholders are fighting to make sure that their interests are represented.
Given this context, trust between agencies and stakeholders is difficult if not impossible to obtain. This trust problem means that communication between the two sides—even in a reformed world—will be difficult. Wagner implicitly acknowledges this trust problem when she discusses “rule benders”—strategic actors on either the agency or stakeholder side who advance their agendas by taking advantage of incomprehensibility.
Even if rules themselves were to become more comprehensible, other problems would persist and new ones might emerge. In my recent book, Bending the Rules, I focus on how agencies can use procedural tactics to insulate both their rulemakings and their professional reputations from stakeholder and political pressures. In addition to covering incomprehensibility, I also focus on other ways that agencies can exploit the rulemaking system to benefit their own interests, such as by manipulating consultation and timing procedures. Unless the rulemaking system is considered holistically, it will be hard for reforms to plug the many holes.
So, what is there to do? Fostering trust in the rulemaking process is a tall order. Wagner’s reform proposals are a good start, but more needs to be done to remediate the relationship between those who write the rules and those who are subject to them. Incomprehensible! invites us to start this conversation in a deep and meaningful way. It is a highly readable and engaging book that challenges us to manage our lives and our laws in today’s information cacophony.
This essay is part of a six-part series, entitled Creating Incentives for Regulatory Comprehensibility.