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

Lawrence A. Cunningham, Professor of law and business and libby scholar

2/11/2008
(Original Publish Date: 10/10/2005)

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 and no framework exists to facilitate analysis. This Article contributes an analytical framework and, for the federal government, nominates the Director of the Federal Register to implement it. Analysis is animated using among the oldest and broadest examples of this pervasive but stealthy phenomenon: embodiment by Congress and the Securities and Exchange Commission of privately-promulgated accounting standards in public law. With accounting standards as a case study, the framework delineates three routes through which private standards are embodied in public law—denominated as strong, weak and semi-strong—and articulates associated copyright and lawmaking consequences. As to copyright, the framework mediates conflicts between public access to legal materials and private incentives to produce standards. It addresses the effect of copyright protection that biases standard setters to focus on quantity instead of quality and prevents third parties from improving standards through derivative works. As to lawmaking, the Article explains alternative governmental strategies to achieve regulatory leverage while adhering to private nondelegation doctrines and publication requirements. The Article appeals to scholars of administrative law, theorists concerned with intellectual property law and its broader political and public policy contexts, and those interested in informational and standard-setting aspects of accounting. Contributions will be of practical use to governmental officials who look to private standards in their regulatory functions, standard-setters in developing standards to aid those officials, and judges in resolving disputes involving citizens subject to or using these standards. While driving new avenues in three specific legal areas (copyright law, administrative law and securities regulation), the Article’s inquiry into contemporary lawmaking is of general significance.