The Penn Program on Regulation launches a new curricular resource site that showcases the importance of voluntary codes and standards.
All law students know that Congress and state legislatures make laws. They come to be familiar as well with many of the key administrative agencies that will affect their clients’ lives and livelihoods. And of course, they know very well the importance of the many judges serving at all levels of the federal and state court systems.
But will they have heard of ASTM International? The American Society of Mechanical Engineers? The International Organization for Standardization? The International Code Council?
Many will have not heard of these organizations, nor of hundreds of other nongovernmental organizations like them that function much like governmental bodies. These private organizations develop codes and standards that govern a large portion of the world’s economy and their work products touch each of our lives daily.
The codes and standards set by these thousands of nongovernmental standard-setting organizations around the world are technically voluntary. But practically they matter a lot to companies that want to develop marketable products and services.
And legally they can matter too.
Voluntary codes and standards find their way into many contracts, and sometimes they become the basis for contractual disputes. They can establish the standard of care in products liability lawsuits—and sometimes they can create a defense against these suits as well. They can also find themselves at the heart of intellectual property transactions and disputes, such as those involving the terms for licensing patents.
Voluntary codes and standards can even become part of binding public law when legislatures and regulatory agencies incorporate them by reference. Tens of thousands of so-called voluntary codes and standards have become mandatory in the United States just through their incorporation into federal regulations.
And yet, despite the importance of voluntary codes and standards, far too few law students receive exposure to them during their time in law school.
Several years ago, the Penn Program on Regulation (PPR) set out to develop teaching materials that could help law faculty close this gap in their students’ legal education. These materials—case studies, teaching guides, PowerPoint slides, and more—can now be located on PPR’s new, dedicated website for voluntary codes and standards: www.Codes-and-Standards.org.
The materials available at Codes-and-Standards.org will make it easy for law school faculty to build instruction about voluntary codes and standards into their existing courses—whether simply through a structured 10-minute supplemental lecture or through the introduction of an entire class session or two into a current course’s schedule.
To highlight the importance of voluntary codes and standards, The Regulatory Review is pleased to publish this series of essays authored by some of the principal contributors to the materials on Codes-and-Standards.org, including: Emily Bremer of Notre Dame Law School; Cary Coglianese, the Director of the Penn Program on Regulation at the University of Pennsylvania; Cynthia Dahl of the University of Pennsylvania Carey Law School; and Gabriel Scheffler of the University of Miami School of Law.
The series concludes with a brief coda that acknowledges the contributions of the individuals and organizations that made Codes-and-Standards.org a reality.
Law’s Interaction with Voluntary Codes and Standards
August 22, 2022 | Cary Coglianese and Angel Reed, University of Pennsylvania Law School
Voluntary codes and standards affect many important aspects of the law and the legal system.
Teaching Standard Essential Patents
August 23, 2022 | Cynthia Dahl, University of Pennsylvania Law School
An in-depth course module opens the door for law students to the increasingly vital world of voluntary standards.
Introducing Incorporation by Reference
August 24, 2022 | Emily S. Bremer, Notre Dame Law School
Incorporation by reference demonstrates how private and public actors collaborate to create modern regulation.
Incorporated Standards in a Federal System
August 25, 2022 | Cary Coglianese and Neharika Goyal, University of Pennsylvania Law School
When state and local officials incorporate voluntary codes and standards, they still need to watch out for federal preemption.
Private Standards and the Benzene Case
August 29, 2022 | Cary Coglianese, University of Pennsylvania Law School, and Gabriel Scheffler, University of Miami School of Law
A classic Supreme Court case highlights the impact and importance of private standards for regulated entities.
A Voluntary Coda
August 29, 2022 | Cary Coglianese, University of Pennsylvania Law School
Just as with the process of creating voluntary codes and standards, the development of Codes-and-Standards.org was truly collaborative.