Binding Language in Administrative Guidance Documents

Do regulatory guidance documents use binding language despite being purportedly non-binding? Regulatory agencies play a crucial role in modern societies by issuing regulations. While most regulations are promulgated as rules with public notice and comment procedures, administrative guidance documents are as abundant but less studied. They have less formal requirements and are meant as non-binding guidelines, yet skeptics argue they are often used to evade judicial review, and courts turn to their text to inquire whether they are effectively binding. Recent advancements in text analysis methods have allowed scholars to analyze regulatory text, including the measurement of binding language. However, guidance documents have not been part of this trend, largely due to their inaccessibility. This article contributes to the field of empirical legal studies and administrative law by constructing a novel dataset of guidance documents, leveraging a unique policy change. It uses text analysis methods with qualitative insights from doctrinal court decisions, and finds that guidance documents are in fact less binding than rules, but that binding language increased over time and that substantial portions of available documents score higher than a document struck down by a court.