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91 Tul. L. Rev. 325 (2016-2017)

handle is hein.journals/tulr91 and id is 351 raw text is: American and European Perspectives on Private Standards in Public Law Emily S. Bremer* For over a century the United States and Europe have reed on private orgamzations to develop and maitain the vast number of technical standards essential for technological advancement, trade, and public safety in any complex, modern society Today the United States and the Eurpean Union each have a well-estabhshed pohcyrequing the use ofpivate standards in government regulation. Although these policies have much in common, they &ffer in several key respects. One consequence of these policy &fferences is that the two governments ofien use different technical standads to rgulate the same goods and processes. In the ongoig free trade negotiations, standards policy thus is viewed as a significant potential souwe of nontariff barmers to trade. Some have suggested that the United States should modfy its standards policy in certai respects in order to address this issue and facilitate a free trade agrement with the European Union. This Article explores the often subtle differences in the private standardization systems and governmental standards policies in the United States and the Eurpean Union. It argues that some of these differences reflect discretionary policy choices attributable to each governmenrt unique history economic reality and political commitments. On these issues, both governments have grater latitude to modify their approach to achieve international rgulatory harmonization. On other issues, however fundamental principles of pubhc law constrain how these governmentsintegrateprivate standards into theirqgulatorywgies. Any fiee trade agreement must respect these constraints and accommodate some necessary degre of divergence between US. and EU standard policies In addition to havrig inmediate relevance for the trade negotiations, this ArticleJ comparative analysis may also help to identify the possibilities and linitations of any governmental framework for public-private regulatory integration. I. INTRODUCTION. ............................... ......326 II. REGULATION AND STANDARDIZATION IN INTERNATIONAL TRADE .............. . ..................... ...... 331 A. The Benefits and Challenges of Standardization.........332 B. Standards and International Trade ... ...............334 C Domestic Concerns with US. Standards Policy..........337 III. Two STANDARDIZATION SYSTEMS, ALIKE IN DIGNITY .............340 A. The American Perspective ............... ....341 * C 2016 Emily S. Bremer. Assistant Professor of Law, University of Wyoming College of Law. I am grateful to the EU Delegation to the United States for facilitating discussions with EU and U.S. officials with relevant expertise and to those officials for sharing their knowledge with me. Thanks also to Sam Bray, Reeve Bull, Jorge Contreras, Brian Frye, Jeff Lubbers, Peter Strauss, Paul Verkuil, Amber Williams, and workshop participants at the University of Kentucky College of Law, the University of Oklahoma College of Law, and the University of Wyoming College of Law for thoughtful feedback on earlier drafts. 325

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