What are codes and standards? Where do they come from? How are they made? This module provides essential background information designed to introduce students to the world of voluntary codes and standards. It can be used as a stand-alone lesson or as a supplement or introduction to one of the other course modules. These materials have been prepared by Cary Coglianese, the Edward B. Shils Professor of Law and Political Science at the University of Pennsylvania and the Director of the Penn Program on Regulation.
Applicable courses: Any course where the instructor is introducing students to voluntary codes and standards.
Materials:
- Teaching guide: Cary Coglianese, Introduction to Voluntary Codes and Standards: A Teaching Guide and Resources
- PowerPoint presentation: Cary Coglianese, Introduction to Voluntary Codes and Standards
- Handout: Cary Coglianese, A Primer on Voluntary Codes and Standards
- Article for Instructors: Cary Coglianese & Caroline Raschbaum, Teaching Voluntary Codes and Standards to Law Students, 71 Admin. L. Rev. 307 (2019)
- Overview Essay: Cary Coglianese & Angel Reed, Law’s Interaction with Voluntary Codes and Standards, Regul. Rev. (Aug. 22, 2022)
- Gordon Gillerman (Director, Standards Coordination Office, National Institute of Standards and Technology, U.S. Department of Commerce)
- Travis Murdock (Manager, Technical Committee Operations, ASTM International)
- What is ASTM, and what does it do?
- Can you describe the process by which ASTM develops standards?
- What else does ASTM do other than develop standards?
- Where do the ideas for standards come from?
- What is the relationship between ASTM standards and government regulations?
- Why should future lawyers learn about the world of standards?
- Nathan Osburn (Director, Corporate Communications, ASTM International)
- Can you give an example of an ASTM standard?
- How are voluntary consensus standards made?
- How many standards has ASTM developed?
- How do standards differ from government regulations?
- What value do organizations like ASTM provide to society?
- Why should law students and lawyers learn more about standards?
- Mary Saunders (Vice President, Government Relations and Public Policy, American National Standards Institute [ANSI])
- What are some examples of voluntary consensus standards?
- How do private standards differ from government regulations?
- What are the advantages and disadvantages of private standards versus government regulations?
- What is the American National Standards Institute (ANSI)?
- How does ANSI accredit standard developers?
- How do ANSI’s Essential Requirements compare with the guidelines in OMB’s Circular A-119?
- What does “consensus” mean in the development of a voluntary consensus standard?
- What is an American National Standard?
- Sara Yerkes (Senior Vice President, Government Relations, International Code Council)
- Why should the public care about codes and standards?
- What is the difference between a code and a standard?
- What is the International Code Council?
- How does the ICC interact with other standards developers and regulators?
- What role do private-sector organizations play in the development of ICC codes?
- Why should law students know about voluntary codes and standards?
- American National Standards Institute, Q&A with Robert S. Adler: Reflections of an Unapologetic Safety Regulator (2022).
- Jeremy Bagott, Dispatches from the Cosmic Cobra Breeding Farm (2019).
- Emily Bremer, Incorporation by Reference in an Open-Government Age, 36 Harv. J.L. & Pub. Pol’y 131 (2013).
- Emily Bremer, On the Cost of Private Standards in Public Law, 63 Kan. L. Rev. 279 (2015).
- Emily S. Bremer, Technical Standards Meet Administrative Law: A Teaching Guide on Incorporation by Reference, 72 Admin. L. Rev. 315-352 (2019).
- Nils Brunsson and Bengt Jacobsson, A World of Standards (Revised ed. 2002).
- Tim Büthe & Walter Mattli, The New Global Rulers: The Privatization of Regulation in the World Economy (2011).
- Tim Büthe & Walter Mattli, International Standards and Standard-Setting Bodies in The Oxford Handbook of Business and Government 440-471 (David Coen, Graham Wilson, and Wyn Grant eds., 2010).
- Ross E. Cheit, Setting Safety Standards: Regulation in the Public and Private Sectors (1990).
- Katie M. Colendich, Who Owns “the Law”? The Effect on Copyrights When Privately Authored Works are Adopted or Enacted by Reference into Law, 78 Wash. L. Rev. 589 (2003).
- Cary Coglianese, Environmental Soft Law as a Governance Strategy, 61 Jurimetrics 19 (2020).
- Cary Coglianese, Private Standards and Public Governance, Regul. Rev. (Nov. 4, 2019), https://www.theregreview.org/2019/11/04/coglianese-private-standards-public-governance/.
- Cary Coglianese & Jennifer Nash, Compliance Management Systems: Do They Make a Difference? in Cambridge Handbook of Compliance, (D. Daniel Sokol & Benjamin van Rooij eds., 2021).
- Cary Coglianese & Caroline Raschbaum, Teaching Voluntary Codes and Standards to Law Students, 72 Admin. L. Rev. 307 (2019).
- Cary Coglianese & Gabriel Scheffler, Private Standards and the Benzene Case: A Teaching Guide, 72 Admin. L. Rev. 353-390 (2019).
- Jorge Contreras, ed., ABA Comm on Tech. Standardization, Standards Development Patent Policy Manual (2007).
- Jorge Contreras, ed., The Cambridge Handbook of Technical Standardization Law: Vol. 2 – Further Intersections of Public and Private Law (2019).
- Jorge L. Contreras, From Private Ordering to Public Law: The Legal Framework Governing Standards-Essential Patents, 30 Harv. J.L. & Tech. 211-231 (2017).
- Dieter Ernst, America’s Voluntary Standards System: A ‘Best Practice’ Model for Asian Innovation Policies? (2013).
- Robert W. Hamilton, The Role of Nongovernmental Standards in the Development of Mandatory Federal Standards Affecting Safety or Health, 56 Tex. L. Rev. 1329 (1978).
- Jessica F. Green, Private Standards in the Climate Regime: The Greenhouse Gas Protocol, 12 Bus. and Pol. 1 (2010).
- Virginia Haufler, A Public Role for the Private Sector: Industry Self-Regulation in a Global Economy (2001).
- Samuel Krislov, How Nations Choose Product Standards and Standards Change Nations (1997).
- Lesley K. McAllister, Harnessing Private Regulation, 3 Mich. J. Envtl. & Admin. L. 291-419 (2014).
- Nina A. Mendelson, Private Control over Access to Public Law: The Perplexing Federal Regulatory Use of Private Standards, 112 Mich. L. Rev. 737 (2014).
- Craig N. Murphy and Joanne Yates, The International Organization for Standardization (ISO): Global Governance Through Voluntary Consensus (2009).
- National Research Council, Standards, Conformity Assessment, and Trade: Into the 21st Century (1995).
- National Technology Transfer and Advancement Act of 1995, Pub. L. No. 104-113, 110 Stat. 775.
- OMB Circular A-119: Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities (notice of availability published at 81 Fed. Reg. 4673 (Jan. 27, 2016)).
- Stephen M. Spivak, and F. Cecil Brenner, Standardization Essentials: Principles and Practice (2018).
- G.M. Peter Swann, International Standards and Trade: A Review of the Empirical Literature, OECD Trade Policy Papers, No. 97, OECD Publishing, Paris, (2010), https://www.oecd-ilibrary.org/trade/international-standards-and-trade_5kmdbg9xktwg-en.
- Gregory Tassey, The Roles and Impacts of Technical Standards on Economic Growth and Implications for Innovation Policy, 1 Annals Sci. & Tech. Pol’y 215 (2017).
- David Vogel, Private Global Business Regulation, 11 Ann. Rev. Pol. Sci. 261 (2008).
- JoAnne Yates & Craig N. Murphy, Engineering Rules: Global Standard Setting Since 1880 (2019).
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In addition to the above sources, several symposia have featured extensive discussion of issues and exchange of ideas related to voluntary codes and standards, including:
- Symposium on Joanne Yates and Craig N. Murphy’s “Engineering Rules,” Notice & Comment (2019), https://www.yalejreg.com/topic/symposium-on-joanne-yates-and-craig-n-murphys-engineering-rules/.
- Incorporating Private Standards into Public Regulations, Regul. Rev. (2015), https://www.theregreview.org/2015/01/26/series-incorporation-by-reference/.
- The Continuing Debate Over Regulatory Incorporation, Regul. Rev. (2013), https://www.theregreview.org/2013/10/14/continuing-debate-over-regulatory-incorporation/.
- Regulating by Reference, Regul. Rev. (2013), https://www.theregreview.org/2013/07/02/regulating-by-reference/.