On Wendy Wagner’s Fascinating New Book Incomprehensible!

by Christopher J. Walker — Monday, Oct. 7, 2019@chris_j_walker

Wendy Wagner (with Will Walker) has a great new book that should be of interest to administrative law nerds, entitled Incomprehensible!: A Study of How Our Legal System Encourages Incomprehensibility, Why It Matters, and What We Can Do About It. It is a fascinating read. Here is the core thesis (at 6):

Expert actors are often not required to master or effectively communicate the information they load into the system. Instead, the gears are set in reverse: to encourage more and more information, regardless of whether it is understood by those generating it. Even the most dedicated, public-minded company or civil servant can find themselves guided by rules that lead them away from ensuring their audience can reasonably understand their communications. Their effort is directed toward generating long paper trails that frequently lead nowhere, rather than ensuring their audience’s overall comprehension. Instead of encouraging information that is useful, the design of many legal programs attracts undigested information like a gravitational force and passes it along to an unequipped, disadvantaged audience.

… Not only is excessive information detrimental to communication, but because our legal designs ignore this simple fact, some actors exploit this oversight. Savvy actors sometimes derive a significant advantage in the market or political process from imposing excessive processing costs on their disadvantaged audiences. Companies make money, patent applicants are rewarded with patents, and members of Congress gain power by deploying strategies that exploit their audience’s limitations in processing voluminous and unduly complicated content. In fact, in some cases, extraneous information can serve as a kind of intimidation tactic: causing audiences to give up, even if they really want to understand the information in front of them.

Wagner illustrates this central argument and its implications with in-depth case studies on consumer protection law (Chapter 4), financial regulation (Chapter 5A), patent law (Chapter 5B), chemical regulation (Chapter 5C), administrative process (Chapter 6), and legislative process (Chapter 7).

For those interested in administrative law, Chapter 6 on the administrative process is particularly engaging. In this chapter, Wagner argues (at 159) that “[t]he net result is an administrative process that – despite its promises otherwise – has become increasingly inhospitable to meaningful engagement by stakeholders in general and citizen groups in particular.” After illustrating the problem with a few examples of incomprehensible agency rules, Wagner explores how the current legal system actually encourages incomprehensibility in the administrative process and how we might go about fixing this legal design problem in administrative law and regulatory practice.

Spoiler alert: Here are Wagner’s three main reform proposals for administrative law:

  1. Adjust existing doctrines that tacitly reward speakers for incomprehensibility (e.g., exhaustion of remedies; all comments must be considered).
  2. Reward comprehensible rules with greater judicial deference.
  3. Document and encourage vigorous and balanced rule deliberations through sanctions, rewards, and subsidies, including the use of proxy representatives.

As Wagner concludes (at 203), “To the extent that rigorous deliberative processes are vital in administrative law to ensure agency legitimacy, reform of this broken institutional process is imperative.”

This short post doesn’t do justice to Wagner’s treatment of incomprehensibility in the administrative process. So go get your own copy of the book, which is available here. Come for the chapter on administrative process, but definitely stay for the following chapter on incomprehensibility in the legislative process.

 


This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Christopher J. Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the California Law Review, Michigan Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and as Chair-Elect of the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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