Private Standards and the Benzene Case: A Teaching Guide

Abstract

Private standards play a central role in the governance of economic activity. They also figure significantly in many public regulations, with more than 17,000 references to private standards contained in the federal regulatory code. Nevertheless, private standards remain largely overlooked in law school curricula. One clear example is Industrial Union Department, AFL-CIO v. American Petroleum Institute (often referred to as the “Benzene Case”), a 1980 Supreme Court decision that is widely excerpted and discussed in major casebooks on administrative law, regulation, environmental law, and statutory interpretation. The Benzene Case raises several important legal issues, including the nondelegation doctrine, the use of benefit–cost analysis in rulemaking, and the proper standard for judicial review in the face of scientific uncertainty. These traditional issues have been explored thoroughly in both legal scholarship and teaching materials, but the Benzene Case also raises previously unacknowledged questions about the role of nongovernmental actors in the development of private standards which are then incorporated into federal law. In particular, scholars have overlooked the important role that private standards played in the early development of the Occupational Safety and Health Administration’s regulatory limits on benzene. Addressing this oversight, we explain in this detailed teaching guide how the Benzene Case provides an excellent opportunity for law faculty to introduce students to what private standards are, how they are developed, and the extent to which the government should rely on these standards. Given the ubiquity of private standards today and the extent to which they are woven into the fabric of regulation across a range of substantive domains, it is vital that law students begin to grapple with questions about their proper role in public law.

Keywords: Administrative law, private standards, voluntary standards, standard-setting, standards compliance, private regulation, private governance, incorporation by reference, regulatory history, OSHA, occupational safety & health, legal education

JEL Classification: D82, H42, I18, K23