Document Type

Article

Publication Date

2019

Abstract

Voluntary codes and standards issued by nongovernmental institutions affect many aspects of legal work and daily life. Although these codes and standards are voluntary—that is, they are not directly enforceable through civil or criminal penalties—they can and do often shape behavior. Codes and standards inform business practices and product designs. They affect the provisions of contracts and the licensing of patents. And, among still other uses, they affect the handling of evidence in criminal law matters.

More broadly, voluntary codes and standards can play a role similar to, or even take the place of, government regulations. Regulators regularly defer to voluntary codes and standards, declining to implement government regulations when codes and standards are seen to address regulatory problems sufficiently. At times, regulatory officials find private codes and standards so effective that government adopts them as law through a practice known as incorporation by reference.

Given the impact that voluntary codes and standards can have on law and society, it is important for lawyers and legal scholars to attend to and understand better the processes by which voluntary codes and standards come to be established and applied. Notably, these processes are often dominated by, if not even controlled by, business entities themselves. The extensive and direct participation of businesses in the standard-setting process raises important policy questions and concerns for society—including questions about the private standard-setting equivalent of regulatory capture.

This essay introduces a special issue of the Administrative Law Review featuring two in-depth teaching guides that law faculty and other scholars can use to incorporate voluntary codes and standards into their courses. These teaching guides, which are but a sample of material available at www.codes-and-standards.org, are intended to help faculty engage their students with the many important legal and policy issues raised by voluntary codes and standards.

Keywords

Administrative law, private standards, voluntary standards, standard-setting, standards compliance, private regulation, private governance, incorporation by reference, regulatory history, legal education

Publication Title

Administrative Law Review

Publication Citation

71 Admin. L. Rev. 307 (2019)

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