Focus on Education & Training in Standards

Teaching About Voluntary Codes and Standards

Cary Coglianese, Edward B. Shils Professor of Law, Director, Penn Program on Regulation,

University of Pennsylvania and

Erik Puskar, Senior Social Scientist, National Institute of Standards & Technology, Gaithersburg,

Maryland USA and corporate member of SES [IFAN Member].

Voluntary codes and standards play a key governing role in the world today. They can help ensure that consumer

products are safe. They can enable cell phones and other digital devices to interact with each other. They can

affect how buildings are constructed so they can withstand hurricanes and earthquakes. And so much more.

When law students and graduate students in public policy learn about "codes" and "standards" they however

learn about government rules and regulations-not the voluntary or consensus standards created by nongovernmental standard-setting organizations. Despite their technically non-binding nature, voluntary codes and

standards can influence industry behavior and have far-reaching impacts on modern products and business

practices. Moreover, they can become legally binding when they are incorporated by reference into government

regulations.

To help address the deficiency in what professionals know about standards, the Standards Coordination Office at

National Institute of Standards & Technology (NIST) launched the Standards Coordination Office Curricula

Development Cooperative Agreement Program. Similar to a grant program, this cooperative agreement

program aims to strengthen education and learning about standards and standardization by supporting the

development of new courses, modules, seminars and learning resources integrating standards into formal

curriculum. The number of awards given each year is based on various factors, such as the number of proposals

received and funding available. The evaluation criteria have evolved as NIST continues to improve the program

each year, but the essential goal has remained the same: supporting standards education at U.S. colleges and

universities.

As one of the many recipients of support under NIST's program, the Penn Program on Regulation at the

University of Pennsylvania has created a resource website, www.Codes-and-Standards.org. The purpose of this

website is to provide an abundance of curricular materials for faculty in law schools and public policy programs to

use to teach their students about the world of voluntary codes and standards. This brief essay explains the

rationale behind the creation of Codes-and-Standards.org, as well as descriptions of the resources it contains.

Voluntary codes and standards serve important functions with respect to coordinating and governing. In much

the same way that binding regulations can, legal and policy professionals working in the field need to know more

about them. Students in law and policy programs learn about how commerce depends on coordinating business

behavior and product design to conform to norms that facilitate trade and interoperability. The faculty members

who teach these students understand the need for societal norms to protect human health and safety and

protect the environment. But the curricula in law and policy predominantly focuses on the design and

implementation of legislative and regulatory standards, not voluntary codes and standards.

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Focus on Education & Training in Standards

Teaching About Voluntary Codes and Standards, continued

To help promote greater understanding of voluntary codes and standards, the Penn Program on Regulation has

developed a suite of teaching materials prepared by a variety of experts at Penn and elsewhere. Faculty

members anywhere can use these materials to integrate formal learning about voluntary codes and standards

into their existing courses. The website, Codes-and-Standards.org, houses a rich collection of teaching guides,

lesson plans, case studies, PowerPoint slides, videos, handouts, and readings that is freely available to the public.

The materials are organized around five "modules," each focusing on a different facet of the world of codes and

standards, all of which are suitable for use in a variety of different existing courses offered in law and policy

schools. A brief summary of each of these five modules offers a clear sense of the scope of materials available at

Codes-and-Standards.org:

1. Introduction to Codes and Standards. For any instructor coming to the world of codes and standards for

the first time, this module offers overarching resources that can be used in any course touching on

voluntary codes and standards. It addresses questions such as: What are codes and standards? Where do

they come from? How are they made? It contains materials that can be used to create a stand-alone

lesson in any existing course. This module can also be used to supplement the content in any of the other

four modules.

2. Standard Essential Patents. The module on standard essential patents delves into a critical way that

standards intersect with the technology development. The central problem motivating this module arises

when a standard-setting organization creates a technical standard that can be met only through the use of

someone's patented technology. To prevent the patent holder from extracting undue market power,

legal principles require that standard essential patents be licensed on fair, reasonable, and nondiscriminatory (FRAND) terms. This module is built around a case study of the Microsoft v. Motorola

litigation-where a federal court confronted a dispute over what FRAND means-and can be used in

courses on intellectual property, patents, contracts, regulatory law, and technology policy.

3. Incorporation by Reference. As noted previously, public laws and regulations often incorporate by

reference private codes and standards. This module delves into the fascinating issues implicated by

incorporating voluntary standards into public law. Since voluntary standards can be copyrighted, they are

not always reproduced in public sources of laws and regulations-they are just noted "by reference." This

has raised a variety of questions that can be explored in the classroom about government transparency,

copyright law, and administrative efficiency.

4. Health and Safety Standards. Many voluntary standards seek to protect consumers' and workers' health

and safety. This module provides materials for instructors to teach about voluntary standards using a

famous U.S. Supreme Court case-Industrial Union Department, AFL-CIO v. American Petroleum

Institute, or the so-called Benzene Case. It is suitable for use in courses on administrative law,

environmental law, statutory interpretation, legislation, and regulatory law.

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Focus on Education & Training in Standards

Teaching About Voluntary Codes and Standards, continued

5. Building Standards and Federal Preemption. A final module shows instructors how they can teach

about federal preemption by using case studies of litigation challenging green building codes that

incorporated by referencing various voluntary energy efficiency standards. The litigation around which

the module's materials are organized arose from a claimed conflict between state and local building

codes with federal energy efficiency laws. This module affords instructors a concrete context for

teaching about federal preemption law, as well as to promote learning about building codes and climate

change regulation.

Given the vital role that voluntary codes and standards can play in commerce today, it is appropriate that the

training of all professionals involved in business operations and transactions gain a greater familiarity with these

standards and how they are developed. The course modules and multi-media case studies assembled at Codesand-Standards.org, which are all freely available in the public domain, use real-world examples to accommodate

teaching about voluntary codes and standards in existing courses. As a result of their detail and structure, the

modules can also be used by instructors without any prior background working with standard-setting

organizations.

IFAN Survey Results to be released June 27, 2023

IFAN is pleased to announce that the

results of our recent survey of

standards users worldwide will be

released in June. This wide-ranging

report documents the first in a

regular polling of standards users

from every corner of the world. It

provides definition of the needs and

issues currently facing our

community.

June

21 June: CEN- CENELEC GA

26/27 June: IFAN Board meets in

Geneva

July

6 July: 50th IFAN European Group

Meeting, online

This first report looks at a wide

variety of issues. These include

challenges within organizations that

use standards as well as concerns

regarding broader community issues,

like digital rights management, new

publication formats and commercial

policies.

IFAN, the voice of standards users

worldwide, is the only organization

with the scope to define these

September

18-22 September ISO GA Brisbane,

Australia

October

IFAN Members’ Assembly TBC

23-26 October IEC GE, Cairo

IFAN Survey

broader issues from a global

perspective. As the standards

community at large continues to

focus on harmonization and broad

distribution, this survey and the

report we have generated will

provide an essential window into the

challenges facing IFAN's

constituency, standards users

themselves.

Calendar

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For further information on IFAN:

IFAN Publications: www.ifan.org/ifan-publications

Contact IFAN: ifan@ifan.org