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81 N.Y.U. L. Rev. 294 (2006)
Best Practices

handle is hein.journals/nylr81 and id is 310 raw text is: ARTICLE BEST PRACTICES DAVID ZARING* In traditional administrative law, agencies pass rules and courts review them. But what if agencies stopped acting by rule and started leading by example? With best practices rulemaking-a theoretically voluntary way of coordinating administrative action both within and across agencies-leading by example is what agencies are increasingly doing. Although best practices rulemaking has been largely ignored by the legal literature, regulation through best practices has increased sevenfold in the past ten years in the federal government alone, touching every aspect of admin- istrative law. This paper describes and evaluates best practices rulemaking, tracking its origins in business management, its adoption by the public sector, and analyzing how it works in that sector. It does so through a series of case studies, in particular a study of the use of best practices to regulate water pollution. An exami- nation of best practices in practice shows that although they purport to be best, there is nothing particularly best about them. The rulemaking technique is a way of obtaining common practices, not ideal ones. Accordingly, best practices rule- making is particularly useful for setting regulatory standards where the precise con- tent of the standard is not particularly important. As best practices rulemaking (along with other forms of horizontal, informal agency action) continues to grow and grow apart from judicial supervision, Congress may want to ensure that this new technique of administrative law is adequately publicized and at least partially supervised through passage of a disclosure-oriented Informal Administrative Pro- cedure Act. I INTRODUCTION In traditional administrative law, agencies pass rules and courts review them. But what if agencies stopped acting by rule and started leading by example? Leading by-or at least, pointing to-example is, in fact, what agencies are increasingly doing. And they are doing it in lieu of the oft-vilified-but-never-replaced complex rulemakings that play a central role in administrative law.1 * Copyright © 2006 by David Zaring. Assistant Professor, Washington & Lee Univer- sity School of Law. Thanks to Francesca Bignami, Matt Bodie, Andrea Gacki, Brandon Garrett, Rebecca Hollander-Blumoff, Reinier Kraakman, Benedict Kingsbury, David Law, Bernadette Meyler, Bill Nelson, Anne-Marie Slaughter, Dick Stewart, Katrina Wyman, and Tim Zick. This article benefited from presentations to the NYU Pre-Tenure Collo- quium and Summer Juniors Writing Group, as well as from fora at the law schools at Michigan, Washington & Lee, Hofstra, Seton Hall, and Michigan State. Thanks also to Reed A.J. Davis, Jason Mitchell, and Greg Oehler for research assistance. I See Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633, 701 (2000) (noting drawbacks of bureaucratic reliance on conventional wisdom); Louis L. Jaffe, The Effective Limits of the Administrative Process: A Reevaluation, 67 HARV. L. REV. 294 Reprinted with Permission of New York University School of Law