Soft Law in 2024: Activating Industry Self-Regulation

The Center for Industry Self-Regulation (CISR), the nonprofit foundation of BBB National Programs, recently held a first-of-its-kind gathering, the Soft Law Summit, to convene experts interested in exploring the potential and power of industry-led solutions to the complex business challenges of today. 

The goal of the event, which took place in Arlington, VA in partnership with Arizona State University’s (ASU) Sandra Day O’Connor College of Law, was to explore the potential for soft law and industry self-regulation to address business and social problems and discuss the factors that enable its success through an examination of both academic research and actual industry practice. 

The event brought together business leaders, policymakers, and leading academic thinkers and writers on many exciting new areas where soft law solutions can be applied, from governance of artificial intelligence to healthcare, from autonomous vehicles and drones to highly regulated industries, among several others. 

Many of those academics have since published papers related to the topics they discussed at the event. 

In those papers and on the Soft Law Summit stage, expert speakers discussed and evaluated scenarios in which co-regulation and soft law have been successful and unsuccessful at solving industry-wide challenges.  

The Takeaways

• Soft law, or industry self-regulation, is agile and flexible, with successful models available that can be easily adapted to a variety of industries and needs.
• Transparency, independent accountability, and enforcement are key elements to historically successful self-regulatory programs.
• The government, including agencies such as the FTC, must work closely with industry stakeholders and self-regulatory organizations.
• Soft law allows industries to keep current with evolving practices, standards, and new technologies due to its ability to adapt quickly to changing circumstances. This nimbleness is especially important in the technology industry, where legislation cannot keep up with emerging and fast-changing regulatory needs.
• Striking the right balance between necessary government regulation and fostering innovation through limited regulation is crucial.
• Businesses can demonstrate leadership and develop meaningful yet practical solutions to help address many societal challenges without being limited by government action or inaction.
• Developing curricula for law schools and postsecondary programs in business, marketing, communications, and advertising can provide future business leaders with the knowledge necessary to develop and deploy industry self-regulation solutions in support of a dynamic, free market economy, and provide future policymakers with knowledge about the role industry self-regulation can play in addressing business and social problems.
• Academic research from a wide range of academic disciplines would be helpful for the thoughtful development of soft law. 

At the Soft Law Summit, we asked some of our expert speakers to help us better understand the concept of soft law, or industry self-regulation, and how it compares to hard law. 

The Future & Evolution of Soft Law

While industry self-regulation has taken place throughout history – think standards, codes of ethics/conduct, professional discipline/supervision, certification/seal programs, and private dispute resolution – the academic study of industry self-regulation, particularly with respect to programs that include robust accountability mechanisms, is nascent and under-studied. As a result, the potential for self-regulatory solutions to advance policy goals and business success is under-appreciated and these solutions are under-utilized. 

Continued academic research and thoughtful study and dialogue in law schools and post-secondary programs can help equip business leaders with the knowledge of how soft law solutions can help systemic challenges, with case studies that demonstrate how various industries built systems unique to them.  

This approach would also provide policymakers with knowledge about the role industry self-regulation can play in addressing business and social problems, such as when it can work alongside governmental regulation, inform sensible government regulation, or be a substitute for government regulation.  

Join us in pursuit of our mission to grow the field of industry self-regulation. 

If you have research that you believe can help us further grow the body of literature around potential use cases and scenarios for the application of soft law or industry self-regulatory solutions, as well as the structures that best promote accountability, trust, transparency, and successful outcomes in the creation of new programs, please reach out.