Document Type
Brief
Publication Date
10-16-2019
Abstract
Amici are professors of administrative law with particular expertise in government transparency, including issues such as the incorporation by reference of private standards into over 9,000 federal regulations. Amici have a strong interest in the development of administrative and copyright law in a manner that enables simple and universal access without charge to regulatory law. As scholars of federal incorporation by reference of private standards, amici write separately to urge the Court to reaffirm the application of the government edicts doctrine to all text that a government has adopted as the law. In particular, the government edicts doctrine applies to all federal regulatory text with the force of law, including language that federal agencies have adopted from private drafters through incorporation by reference.
Federal regulatory law contains thousands of "incorporations by reference" of other materials. Agencies have incorporated legal text originally drafted by private organizations ranging from the standards-focused American Society for Testing and Materials (ASTM) to industrial trade associations such as the American Petroleum Institute (API). Undercurrent practices, privately drafted materials are incorporated only by reference. Their text does not appear in the Federal Register, the Code of Federal Regulations, or the agency's website, although the incorporated material has the same force of law as regulatory text appearing directly in those publications.
Recommended Citation
Mendelson, Nina A., "Georgia v. Public.Resource.Org, Inc.: Brief of Amici Curiae Law Professors Nina Mendelson, Alan Morrison, Anne Joseph O'Connell, and Peter Strauss in Support of Respondent" (2019). Appellate Briefs. 59.
https://repository.law.umich.edu/briefs/59
Comments
Amicus: Mendelson, Professor Nina; Morrison, Professor Alan; O'Connell, Professor Anne Joseph; Strauss, Professor Peter