The legitimacy of administrative process is advanced in part by accountability processes that involve robust stakeholder participation. Yet empirical studies reveal that the administrative state is becoming increasingly inhospitable to meaningful engagement by some stakeholders, due in part to the size and complexity of the rulemaking process. This chapter argues that at least part of the blame for the resulting incomprehensible rules can be attributed to the design of administrative process itself. Despite its commitment to accountability and participation, there are few-to-no requirements to ensure that rulemaking deliberations involve cooperative communication. Indeed, there are a number of ways that legal requirements tacitly encourage incomprehensibility in legal filings and communications. After discussing the problems with this legal design and the resultant implications for the goals of administrative process, the chapter concludes with proposals for reform.

Consumer protection law is notoriously imbalanced with respect to the superior ability of sellers to process information as compared to their customers. Yet despite the resulting comprehension asymmetries, the design of consumer contract law and disclosure requirements regularly fail to encourage sellers to communicate meaningfully with the target audience. This chapter explores how consumer protection law tacitly encourages incomprehensibility and proposes reforms which would provide increased incentives for meaningful communication between buyers and sellers.