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Mendelson 14 – Joseph L. Sax Collegiate Professor of Law at the University of Michigan, J.D. from Yale University.

Nina Mendelson, “Private Control over Access to Public Law: The Perplexing Federal Regulatory Use of Private Standards,” Michigan Law Scholarship Repository, 03-01-2014, https://repository.law.umich.edu/articles/887/

Lastly, the free availability of laws and regulations generally benefits the ongoing development of regulatory standards. Future law drafters, whether in Congress, agencies, or private organizations, can learn from the innovations of earlier standards and their successes or failures. Innovations in regulatory design have led to a preference for performance standards over design standards, as well as an increased use of information-disclosure standards and so-called “nudging” standards that take advantage of behaviorist insights.348 Greater public disclosure of SDO-developed standards would undoubtedly increase the opportunity for these sorts of innovations.349 Technical standards that are open to the public can prompt technological innovation as well.35

In February 2013, similar considerations led the White House Office of Science and Technology Policy to announce a policy of making federally funded research freely available to the public within twelve months of its publication, even though this would have the effect of reducing revenues to the private publishers of that research. Although this research was not secret, the White House policy change recognized that the publication charges represented a significant obstacle to public access. Metadata was to be available without charge upon first publication. As the Office of Science and Technology Policy commented, the results of such scientific research “become the grist for new insights.”351

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