Author

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 administrative 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 examination 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 rulemaking is particularly useful for setting regulatory standards where the precise content 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 Procedure Act.”