Been reading up about dark regulatory matter after coming across this Forbes article
Guidance documents, while not legally binding or technically enforceable, are supposed to be issued only to clarify regulations already on the books. However... they are increasingly used to effect policy changes, and they often are as effective as regulations in changing behaviour due to the weight agencies and the courts give them. Accordingly, job creators feel forced to comply.
Such proclamations obviously skirt the constitutional lawmaking process, but evade even the lesser published notice-and-comment requirements of the Administrative Procedure Act (APA) and subsequent OMB review.
A July 2012 U.S. House of Representatives Committee on Oversight and Government Reform expressed concern over guidance documents ("non-legislative" rules), but three years have passed and nothing was done:
John Graham and James Broughel propose options such as reinstating a George W. Bush requirement to prepare analysis for guidance documents, explicitly labelling them as non-binding, and requiring formal notice and comment for significant ones.
… Sometimes guidance is upheld by courts, sometimes not.
Congress better fix regulatory dark matter, by Clyde Wayne Crews Jr
Along the same line of thinking, I’ve also been working my way through Publishing as Artistic Practice which has some interesting ideas about how we understand the act of publishing writing is changing:
Here’s a brief thought experiment: you write a novel and leave it on a park bench. Is this a published novel? Let’s say you print 1000 copies, leaving them on 1000 park benches. How about now? Or how about a publisher buys it, takes out masses of adverts but literally no one buys a single copy? In what sense has that work been published? At what point does a letter or email pass from private correspondence to public, published text? One hundred or 100,000 recipients? Or is the idea of putting a numerical value on being public absurd, and if so, what conceptual distinction should we make instead? If I post the email on the internet, we can assume it has been published, but then, if nobody views it, how is it more public than an email sent to 100 people?
Lukas W. Melkane, cited in Publishing as Artistic Practice, originally from The Content Machine
The future of writing is not writing.
Kenneth Goldsmith, cited in Publishing as Artistic Practice, originally from Theory
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