For more than sixty years, prominent policing scholars have argued that the way to address the many problems of policing is to treat police departments like all other agencies of government—and to require that they set policy through something like notice-and-comment rulemaking. This paper argues that despite its intuitive appeal, rulemaking is not a particularly apt solution to policing’s various ills. Although policing scholars have been right to look to administrative law for ideas on how to govern policing, they have been focused on the wrong set of administrative tools. Instead of looking to the public to regulate the police through rulemaking, a more promising alternative is to create what I call regulatory intermediaries—permanent administrative bodies that can stand in for the public and help regulate the police.
Rethinking Police Rulemaking,
Nw. U. L. Rev.