“Engineering Rules” by Joanne Yates and Craig Murphy recounts stirring tales from the noble brotherhood of engineers, on a mission to improve the world through standard-setting. The engineers tackle nonuniform screw threads, creating the first national screw thread standard (the appealingly named “Whitworth thread”), address railway cars of varying sizes and shapes, and devise the standards that support and secure the Internet.  The book’s many delights include the brief appearance of American industrial engineer Lillian Moller Gilbreth, as the sole woman among 4,500 engineers at the 1929 World Engineering Congress.  Gilbreth, along with her engineer husband Frank Gilbreth, were the heroes of a favorite childhood book of mine, “Cheaper By the Dozen.”  The book recounts the parents’ deployment of engineering techniques – and even consensus-focused standard-setting procedures — to raise their twelve children.  The children learn foreign languages while they bathe and exit the house in under 15 seconds in an emergency, but also outmaneuver the parents to get a dog and circumvent all manner of disciplinary measures.  Engineering techniques work in some contexts and not others.  And so it is with engineering rules. As the book documents, some standard-setting efforts succeed and some don’t.  Particularly because private standard-setting processes have increasingly supplied agencies with the material for government rules with the force of law, ranging from building codes to regulations on toy safety and nuclear power plant operation, projects like Engineering Rules should prompt greater reflection on our processes for designing and imposing norms.

Consider at one end of the continuum the consensual processes among professional engineers on which Engineering Rules focuses. At the other might be the ballot referendum in which all registered voters participate.  The first group—but not the second–is clearly well-suited to resolve compatibility and effective operability requirements, such as a uniform fire hose and hydrant coupling requirement.  The National Fire Protection Association devised such a standard in response to a major fire in Baltimore in 1904, when nearby fire-fighting units discovered that their hoses did not fit Baltimore hydrants.   Resolving interoperability questions draws heavily on the technical expertise of the group members, though such questions are not free from economic and political concerns.  (A particular standard may disadvantage the company that initially chose the wrong technology, or participants in the process may be employed by a company with a stake in a particular outcome.)

Further, because they are group-drafted, these technical standards may be more widely accepted than standards prepared by an MIT scientist working alone, no matter how brilliantly.  These groups of expert professionals, unified by the common language of engineering, also may be viewed as speaking for the engineering needs of a variety of companies, industries, and even countries.   Even so, the group need meet only a bare minimum requirement of representativeness.  The extraordinary rarity of the Lillian Gilbreths of the world in engineering gatherings foreshadows a wide variety of continuing limits on inclusion and participation.

Shortcomings in representation can, however, significantly undercut standard-setting efforts implicating other sorts of issues — such as how much should be spent on improving product safety, reducing workplace risks, or avoiding relatively rare, but devastating, accidents.  For these issues, questions of value, including equity, are increasingly prominent.  This makes widespread participation, closer to a referendum model or what is provided in agency rulemaking, more important.

But standards organizations participation inevitably involves a fair amount of “pay to play,” the least of which is the costs that must be incurred to travel to the standards development meetings.  Consumers and neighbors are almost certainly dramatically underrepresented.  Moreover, as the authors acknowledge, an imperative for these organizations is their continued existence, which can mean satisfying the standards-related demands of paying members, often corporations.  Some standards organizations, including trade associations such as the American Petroleum Institute, have an explicit corporate focus.  The private organizations thus may face a reduced incentive to meaningfully engage other stakeholders, whether those are workers, consumers, or those concerned about environmental quality or resource conservation.

Deciding the content of values-related standards calls for more open participation to arrive at both a substantively better standard and one that is more legitimate.  The inherent limitations of these privately funded organizations, coupled with policy questions less amenable to engineering expertise, may be one reason why the more recent standards efforts discussed by Yates and Murphy regarding social accountability issues have been less successful.  Companies have resisted adopting them or they have been too minimalist to make a major impact.  Meanwhile, these standards have their own risks.  The presence of voluntary standards can take the steam out of more significant reform efforts.  Or government agencies may adopt them wholesale without sufficient reflection on the values issues or even whether the technical aspects of the standards adequately advance public regulatory goals.  We have important governance gaps, both domestically and internationally, but engineering-inspired private standards efforts may not be a universal panacea.  When we do consider whether these standards should compose our legal obligations to one another, we must more carefully consider the transparency of standards-drafting processes, the extent of engagement opportunities for all persons with a stake in the decision or expertise to offer, and whether the standards appropriately advance our public goals.  More sensitive process design might help us better realize the promise of engineering-type strategies for a wide range of problems.

Nina A. Mendelson is the Joseph L. Sax Collegiate Professor of Law at University of Michigan Law School.

This post is part of a symposium reviewing JoAnne Yates and Craig N. Murphy‘s Engineering Rules: Global Standard Setting since 1880 (John Hopkins University Press). Previous posts in the symposium can be viewed here.