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That ends the administrative state.

Burroughs 24 – J.D. Candidate at the University of Chicago School of Law.

John Burroughs, “Incorporated Standards and Fair Use: Remaining Uncertainties Set the Stage for Further Litigation,” The University of Chicago Business Law Review, https://businesslawreview.uchicago.edu/online-archive/incorporated-standards-and-fair-use-remaining-uncertainties-set-stage-further

Ordinarily, compliance with the standards developed by SDOs is voluntary,4 but governments sometimes incorporate them into law by reference, thus giving privately developed standards legal force.5 Incorporation by reference occurs when a rule promulgated by a government agency references, but does not reprint, other material as containing the requirements for regulatory compliance.6 This benefits both government regulators, who can adopt efficient industry standards without having to devote public resources to developing their own, as well as businesses, who no longer have to worry about complying with two different standards in the form of industry standards and government regulations.7 In fact, “agency personnel who were interviewed unanimously reported that, without the work of private standard-development organizations (SDOs), agencies would not have the time, resources, or technical expertise to fulfill their regulatory missions.”8 However, SDOs have copyrights in their technical standards—as the standards are original works of authorship—which SDOs traditionally retain even after incorporation occurs, leading to potentially substantial constitutional issues concerning public access to the law.9

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