Nanotechnology Law Report

Nanotechnology and "Soft Law"

Noting that nanotechnology and nanoindustries have emerged during a period when both the power and ability of government agencies, both on the Federal and State levels, to regulate commerce in all of it's myriad forms has come under debate and "renewed interest in regulatory reform" and is being "replaced by new governance approaches seeking to transform regulation from [an] agency-centric excercise in setting incentives to a collarborative undertaking by actors from multiple segments of society" Professor Timothy F. Malloy of the UCLA School of Law, in a short essay "Soft Law and Nanotechnology: A Functional Perspective", examines"soft law" in the regulation of nanoindustry. "Soft law", in this study, rises from multiple sources, "established standards of behavior and . . . is not legally binding".

Professor Malloy briefly describes four functions of soft law:

1- Precursive function: Laying the groundwork

" The precursive function refers to the use of soft law to lay the groundwork for later hard law instruments. . . . often [taking] the form of voluntary programs aimed at collecting information needed to design conventional hard law programs. . . . Precursive soft law programs may also focus on taking potential regulatory approaches, methodologies or standards for 'test drives', hoping to inform or improve the design of the later mandatory program."

2- Normative Function: Leveraging Social Norms

"The normative function refers to the soft law program's capacity to support the formation and activation of norms of behavior among the targeted population of businesses. . . .Here the program has the specific substantive goal of affecting the manner in which firms and individuals use and manage nanotechnology. Such programs eschew formal law. .  relying instead upon the influence of social norms and behaviors. . . .The critical point here is that where meaningful social norms regrading the appropriate health and safety practices exist, no legally enforceable regulation may be needed."

3- Directive Function: Trading Incentives

"The directive function refers to those soft law instruments having a quasi-binding nature. . .. The directive function is perhaps the closest in operation to hard law."

Professor Malloy offers the example of a company entering a certification program. If a company follows required procedures, the company and it's products gain the desired benefit of being certified by a respected body as being as good or superior to competing manufacturers or producers. The trade off is that the company, to retain that coveted certification, has to commit itself to continuing to follow the procedures, otherwise it risks the "punishment" of de-certification.

4- Complementary Function: Integrating Hard and Soft Law

"The complementary function links hard and soft law. Here soft law serves to assist in the implementation of hard law." For example, government agencies regularly issue informal "guidances" or "guidelines", non-legally binding documents "issued by an agency to clarify its interpretation of a statute or regulation. . . .It provides some level of predictability in the implementation of hard law and can serve as a focal point for engagement among the agency and interested parties."

"Soft Law and Nanotechnology: A Functional Perspective" develops these ideas in greater depth than is possible here and is well worth a read.

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