June 11, 2018

All Roads Lead to Soft Law



The ancient Romans are commonly credited with exporting the rule of law throughout the Mediterranean and beyond. But it is often overlooked that in the Republican era, Roman politics and society were largely governed by a set of unwritten rules and norms collectively known as mos maiorum, or “the way of the elders.” During the decline and fall of the Republic, it was the unraveling of these informal institutions — not the erosion of the formal rule of law — that ultimately paved the way for the more direct and systematized bureaucratic governance that became a hallmark of Imperial Rome.

Today, with the emergence of the Internet and the torrent of new technologies it has brought in its wake, federal regulators often resort to their own form of mos maiorum in an attempt to keep pace with the rapid advancement of technology. In contrast to the traditional regulatory rulemaking process, these less formal governance mechanisms are known as “soft law.” This phenomenon poses a challenge to the regulatory system, which was built in a different time to address a less dynamic set of problems.

In an article for the recent edition of the Washburn Law Journal, I explore the rise of soft law in technology policy, its costs and benefits, and a few case studies detailing the impact of these less formal governance practices.

We can trace the origins of soft law in the United States to at least the early 20th century, when the Bureau of Chemistry — the predecessor to the Food and Drug Administration — issued so-called “food ‘inspection decisions” in order to help answer questions regarding rules the Bureau issued. These informal guidance documents were not intended to carry the force of law, but rather were “issued more in an advisory than in a mandatory spirit.” Since then, landmark court cases, such as Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., have allowed regulatory agencies to exercise greater discretion when interpreting ambiguous grants of statutory authority. This has created an environment in which administrative rulemaking, especially in the context of emerging technologies, has become less and less formal, making use of soft law proceedings, such as multistakeholder processes, that increasingly supplant more traditional rulemaking processes.

Although there are costs associated with this new breed of rulemaking, there are also noteworthy benefits to consider. For governance of emerging technologies in particular, soft law mechanisms offer a number of advantages over more formalized, hierarchical rulemaking processes, such as:

  1. Providing opportunities for real-time “governance learning” via trial-and-error experimentation;
  2. Creating a political steam valve that can help alleviate pressure on policymakers to act before actual harms materialize;
  3. Injecting greater transparency, adaptivity, and responsiveness into the regulatory process;
  4. Building trust and incentivizing compromise among stakeholders with conflicting perspectives; and
  5. Affording opportunities for pro-innovation policy entrepreneurs to push back against excessively precautionary regulatory proposals.

Of course, these advantages need to be weighed against soft law’s potential drawbacks. These could include:

  1. Diminished long-term legal certainty;
  2. Eroding trust in institutional legitimacy and expanded avenues for regulatory capture by industry; and
  3. Opportunities for policy entrepreneurs who are hostile to technology and progress to influence regulations.

Taking these considerations into account, the paper concludes by looking at three recent case studies of how soft law has worked in practice: the Internet of Things, drones, and autonomous vehicles. To take the latter example, after the first driverless car was able to successfully complete the DARPA Grand Challenge in the mid-2000s, preemptive regulatory action entered a period of suspended animation while think tanks, academics, regulators, industry representatives, and other stakeholders debated various approaches to governing the unique safety, privacy, and cybersecurity challenges presented by autonomous vehicles. Only in recent years have ongoing developments in the commercialization of the technology ultimately resulted in more formal legislative and regulatory pronouncements.

The challenge for soft law is that its application to emerging technologies is still in its infancy. Regulators and policymakers would be well-advised to follow the example of Republican-era Rome: not every rule needs to be chiseled into stone.