Just as with the process of creating voluntary codes and standards, the development of Codes-and-Standards.org was truly collaborative.
The creation of a voluntary code or standard is collaborative. The process brings together experts from businesses, universities, non-profit organizations, and government agencies, all with the aim of deciding what a code or standard shall say. As the American National Standards Institute (ANSI) describes it, the process of standard-setting is “characterized by openness, balance, due process, consensus”—in other words, collaboration.
In much the same spirit, the Penn Program on Regulation’s (PPR) project on voluntary codes and standards was itself a genuine collaboration. The project resulted in three original case studies and five course modules—the latter replete with teaching guides, PowerPoint slides, videos, and other resources. These materials, accessible on the Codes-and-Standards.org resource website, can be used by instructors in law and public policy schools to introduce their students to what is an important, yet often overlooked, feature of governance within any modern economy.
The essays in this series in The Regulatory Review already serve to highlight the core authors of the materials featured on Codes-and-Standards.org. But it is fitting to conclude this series with a more complete set of acknowledgments of the many individuals who have collaborated to make this project a reality.
The inspiration for the project originated seven years ago. I give full credit for the original idea to Shari Shapiro, one of our exceptionally talented alums at the University of Pennsylvania Carey Law School who also served in the past as a research affiliate with PPR. Shari played a pivotal role in developing and submitting proposals for this project to the National Institute of Standards and Technology (NIST), which ended up supporting the project through two cooperative agreements under the agency’s standards curricular development program.
Patricia Harris and Mary Jo DiBernardo at NIST were incredibly helpful to us in getting the project off the ground. I count myself fortunate to have been able to work with such smart and dedicated civil servants. (As an aside, NIST will surely want me to add here the usual boilerplate language that, notwithstanding NIST’s financial support, any statements, findings, conclusions, and recommendations associated with this project or contained in any of its materials are those of individual authors and do not necessarily reflect the views of NIST or the U.S. Department of Commerce.)
Outside of NIST, the University of Pennsylvania Carey Law School served as the other key institutional player making this project possible. Penn constantly provides both an extraordinary intellectual environment and supportive institutional infrastructure that fosters innovation. Perhaps no one person exemplifies that combination of intellectual and institutional leadership as much as our law school’s dean, Ted Ruger, who, in addition to his many decanal accomplishments over the years, played a crucial substantive role early in this project. Although he may well have forgotten the brief conversation he and I had about this project in its earliest days, it was his idea, offered in that discussion, that led us to produce flexible, bite-sized course modules instead of developing an entire course curriculum around codes and standards. His idea constitutes one of the real virtues of what this project offers: It makes it easy for a faculty member to add even just a brief treatment of voluntary codes and standards to an existing law school course.
Faculty members teaching intellectual property, for example, can use some of these materials to slide a discussion of standard-essential patents into their existing course schedule. Those same materials could make for a fascinating, real-world addition to an advanced contracts course or negotiations class. Anyone teaching real estate law, local government, or environmental law can use the case studies on green building codes to teach about federal preemption. The materials on incorporation by reference could be used in classes on administrative law, statutory interpretation, or even possibly jurisprudence. And these are just a few of the possibilities.
This wide-ranging project benefited immeasurably from many intellectual collaborators. In this regard, I want to express many thanks, first and foremost, to my faculty colleague, Cindy Dahl. At the same time that she so capably directed our law school’s highly successful Detkin Intellectual Property and Technology Legal Clinic, Professor Dahl was still able to make time to contribute instrumentally to this project. Her innovative case study on the Microsoft v. Motorola litigation, along with an accompanying teaching guide, constitutes a real core to this project. The materials she created also contribute more generally to law school pedagogy and to the field of intellectual property. Indeed, it was no surprise to me that the journal IP Theory published the teaching guide she prepared for this project. As someone who myself has been fortunate to have Professor Dahl teach the Microsoft v. Motorola case study in one of my classes, I cannot recommend more highly her case study and teaching guide even to faculty outside of the intellectual property field, as they afford an opportunity to benefit from her insights as a truly gifted instructor.
Professor Dahl also has my sincere gratitude for giving of her time to share her work at a NIST-sponsored workshop. She also joined with our esteemed colleague, Christopher Yoo, to organize a distinctive conference on standard-essential patents and the Microsoft v. Motorola litigation. That conference, with featured keynote addresses by Makan Delrahim, then Assistant Attorney General for the U.S. Department of Justice Antitrust Division, and Judge James L. Robart, who presided over and issued the pathbreaking decision in Microsoft v. Motorola, marked an important milestone in the life of this project. I am grateful to the Center for Technology, Innovation and Competition and its director, Professor Yoo, for support of that conference.
Other teaching materials available through Codes-and-Standards.org were developed by or with other colleagues for whom I have deep appreciation and admiration. Notre Dame Law School’s Emily Bremer is a font of knowledge about standard-setting, and she offered excellent counsel at various points along the way with the project. Most importantly, she produced an outstanding teaching guide on incorporation by reference that anyone teaching administrative law would do well to download from the project’s website.
I am very grateful for the opportunity to work with three coauthors on a substantial portion of the materials produced in this project. Gabe Scheffler of the University of Miami School of Law worked to uncover hidden secrets about the famous Benzene Case in the course of our development of the risk regulation teaching guide. Shana Starobin, a professor at Bowdoin College, and Alexandra Johnson, now a student at Yale Law School, made it possible for me to turn Shari Shapiro’s excellent idea for teaching materials on green building codes into resources that anyone can use to teach federal preemption.
More than a dozen faculty colleagues, attorneys, and standards professionals gave of their time to be videotaped for our supplemental videos that accompany each teaching module: Martin Chávez, the former mayor of Albuquerque, New Mexico; Andrew Culbert, the former Associate General Counsel of Microsoft in charge of intellectual property litigation; Kirk Dailey, the former Corporate Vice President of Intellectual Property at Motorola; Steven Fortney, the former judicial clerk to Judge Robart; Gordon Gillerman, the director of NIST’s Standards Coordination Office; Joseph Mattingly, the former general counsel to the Air-Conditioning, Heating, and Refrigeration Institute; Nina Mendelson, the Joseph L. Sax Collegiate Professor of Law at the University of Michigan Law School; Travis Murdock and Nathan Osburn of ASTM International; Judge James L. Robart of the U.S. District Court for the Western District of Washington; Mary Saunders of ANSI; Peter L. Strauss, the Betts Professor Emeritus of Law at Columbia Law School; and Sara Yerkes of the International Code Council.
Producing these videos would not have happened without the expert technical support and abundant patience of Neal Swisher, leader of the law school’s media team, and especially of Vincent DeJesus, who shot and edited most of the videos. Sudeshna Dutta and Kara Gaulrapp played central roles in designing and updating our voluntary codes and standards website. Key assists with the project came over the years from Silvana Burgese and her faculty support team, as well as from Merle Slyoff, Timothy von Dulm, and others on the Biddle Library staff. And PPR Managing Director Andy Coopersmith’s incomparable talent in project management helped in invaluable and innumerable ways bring this project over the finish line.
A multi-year project like this could not have happened without the involvement of numerous Penn students who served as research assistants, including Laurent Abergel, Audrey Adams, Leticia Carter, Jenny Choi, Aaron Douglas, Neharika Goyal, Stephanie Haenn, Kat Hefter, Ravi Arya, Taylor Hertzler, Laura Hinnenkamp, Thomas Laws, Lily Moran, Brianna Rauenzahn, Angel Reed, Elizabeth Shackney, Jasmine Wang, Roshie Xing, and Zihan Xiong. I thank each of them for their hard work and for the privilege I have had in getting to know them.
The Administrative Law Review featured some of the work from this project in one of its recent volumes. But it is especially fitting that we have had the opportunity to mark the completion of the Codes-and-Standards.org resource website with a series of essays in The Regulatory Review, PPR’s flagship publication. The Review’s goals parallel those of Codes-and-Standards.org; they are both student-oriented, offering innovative ways of helping to prepare future lawyers. Moreover, Codes-and-Standards.org also helps to advance The Review’s longstanding goal of making regulatory governance more accessible and understandable to all members of society.
I conclude, then, by offering sincere, last-but-not-least thanks to editors from two separate editorial boards of The Regulatory Review for their expert role in bringing this series to life. Past Editor-in-Chief Sarah Madigan and Series Editor Leigh Anne Schriever initially edited several of the essays that have appeared here. Soojin Jeong and Margaret Sturtevant, the current Editor-in-Chief and Managing Editor, respectively, completed all the final edits and handled the publication of the entire series with their characteristic dedication and attention to detail.
As much as it has been an incredibly fruitful collaborative process to get to the point of completing Codes-and-Standards.org, the most important collaboration has only begun. We want this new resource website to be used by others. I invite my faculty colleagues around the world to check out the materials we have developed and adapt them for your own classroom needs and styles. It is that kind of collaboration that our project on voluntary codes and standards is ultimately all about.
This essay is part of a six-part series entitled Codes-and-Standards.org.