November 2005 Vol. 104 No. 2 THE REVIEW

Private Standards in Public Law: Copyright, Lawmaking and the Case of Accounting

Lawrence A. Cunningham

Government increasingly leverages its regulatory function by embodying in law standards that are promulgated and copyrighted by non-governmental organizations. Departures from such standards expose citizens to criminal, civil, and administrative sanctions, yet private actors generate, control, and limit access to them. Despite governmental ambitions, no one is responsible for evaluating the legitimacy of this approach ex ante and no framework exists to facilitate analysis. This Article contributes an analytical framework and proposes institutional mechanisms to implement it.

The lack of a comprehensive framework for evaluating copyright to standards embodied in law is surprising because the range of standards potentially affected is large and growing. It includes standards relating to accounting, consumer product safety, energy, government contracting, insurance, medicine, and telecommunications; codes for buildings, corporations, and legal ethics; and manuals for stock exchange listings and scores of others.

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