Lawyers Need to Learn About Industry Self-Regulation
Gary Marchant, Regents Professor of Law; Faculty Director, Center for Law, Science and Innovation, Sandra Day O'Connor College of Law, Arizona State University
As industries worldwide increasingly turn to self-regulation—also known as soft law—lawyers must adapt to this shift. Whether serving as in-house counsel or external advisors, lawyers must understand the growing role of soft law and how it can be leveraged to solve emerging legal issues. With the pace of technological change accelerating, soft law is becoming a crucial tool for lawyers to address complex problems and support their clients in innovative ways.
This semester, I have had the pleasure of teaching the nation’s first graduate-level curriculum on industry self-regulation, developed in partnership with the Center for Industry Self-Regulation, a 501(C)(3) non-profit organization established to educate the general public on the conditions necessary for industry self-regulation to succeed and incubate the self-regulatory initiatives of the future.
Self-regulation, or soft law, refers to the rules, standards, and enforcement mechanisms that industries establish to govern their own practices. Rather than relying on government regulations, many companies create self-regulatory frameworks to handle legal challenges.
Self-regulation is no longer a niche area of law—it’s becoming a central component of how industries manage legal and ethical challenges. This shift is driven by several factors:
Given this trend, lawyers must be aware of self-regulatory tools and strategies to effectively support their clients.
In my own legal career, I saw the need for soft law firsthand. While at Kirkland & Ellis, I spent much of my time on two large soft law programs that helped clients find win-win solutions for complex challenges. These experiences demonstrated how self-regulation could be an effective and innovative alternative to traditional legal approaches.
Since transitioning to academia, I’ve continued to witness the importance of soft law, such as through a project funded by the Department of Energy to address the governance of nanotechnology. We heard from scientists, businesses, and government regulators alike about the urgent need for self-regulation in this field, as traditional regulation struggled to keep up with rapid advances.
Recognizing this, CISR developed a curriculum designed to fill this void that provides students with the tools and knowledge to advise clients on self-regulatory frameworks. By integrating this training into legal education, law schools can better prepare students for the realities of modern legal practice.
The time to emphasize soft law in legal education is now.
Looking ahead, as industries continue to innovate at a rapid pace, soft law will offer a flexible, effective alternative to traditional government regulation. Lawyers will need to be equipped to guide their clients in this evolving landscape, helping them navigate the complexities of self-regulation.
Academia has a key role to play in preparing the next generation of lawyers to understand and apply soft law. By incorporating self-regulation into legal curricula, law schools can ensure their students are prepared for the future of law, where self-regulation will be as critical as traditional regulatory frameworks.
Law schools that fail to integrate soft law into their curricula risk leaving their students ill-prepared for the realities of modern legal practice.
By incorporating self-regulation into their programs, law schools can ensure their graduates are not only proficient in traditional legal areas but are also equipped with the innovative problem-solving tools needed to address the challenges of the 21st century.
If you have questions about curriculum implementation or adaptation, or if you would like to request the various curriculum resources, contact the CISR team here.
As industries worldwide increasingly turn to self-regulation—also known as soft law—lawyers must adapt to this shift. Whether serving as in-house counsel or external advisors, lawyers must understand the growing role of soft law and how it can be leveraged to solve emerging legal issues. With the pace of technological change accelerating, soft law is becoming a crucial tool for lawyers to address complex problems and support their clients in innovative ways.
This semester, I have had the pleasure of teaching the nation’s first graduate-level curriculum on industry self-regulation, developed in partnership with the Center for Industry Self-Regulation, a 501(C)(3) non-profit organization established to educate the general public on the conditions necessary for industry self-regulation to succeed and incubate the self-regulatory initiatives of the future.
Self-regulation, or soft law, refers to the rules, standards, and enforcement mechanisms that industries establish to govern their own practices. Rather than relying on government regulations, many companies create self-regulatory frameworks to handle legal challenges.
Self-regulation is no longer a niche area of law—it’s becoming a central component of how industries manage legal and ethical challenges. This shift is driven by several factors:
- Technological Advancements: Technologies such as artificial intelligence (AI), biotechnology, and nanotechnology are evolving at an unprecedented pace. Traditional regulatory bodies are struggling to keep up. Soft law fills this gap by allowing industries to set their own standards and address issues more quickly and flexibly than government regulation allows.
- Political and Legal Shifts: Recent U.S. Supreme Court decisions, such as those limiting Chevron deference and emphasizing the major questions doctrine, have weakened traditional regulatory frameworks. As a result, industries are turning more to self-regulation to fill the regulatory gap.
- Global Deregulatory Trends: There is a shift toward deregulation worldwide, with governments increasingly stepping back from regulatory oversight. This trend, accelerated by political changes in the U.S. and other countries, further highlights the importance of self-regulation.
Given this trend, lawyers must be aware of self-regulatory tools and strategies to effectively support their clients.
In my own legal career, I saw the need for soft law firsthand. While at Kirkland & Ellis, I spent much of my time on two large soft law programs that helped clients find win-win solutions for complex challenges. These experiences demonstrated how self-regulation could be an effective and innovative alternative to traditional legal approaches.
Since transitioning to academia, I’ve continued to witness the importance of soft law, such as through a project funded by the Department of Energy to address the governance of nanotechnology. We heard from scientists, businesses, and government regulators alike about the urgent need for self-regulation in this field, as traditional regulation struggled to keep up with rapid advances.
Bridging the Gap in Legal Education
Despite the growing significance of self-regulation, law schools have largely ignored its importance in legal education. While law schools excel at training students to deal with litigation, regulation, and transactions, they often fail to address the emerging role of soft law.Recognizing this, CISR developed a curriculum designed to fill this void that provides students with the tools and knowledge to advise clients on self-regulatory frameworks. By integrating this training into legal education, law schools can better prepare students for the realities of modern legal practice.
The time to emphasize soft law in legal education is now.
Looking ahead, as industries continue to innovate at a rapid pace, soft law will offer a flexible, effective alternative to traditional government regulation. Lawyers will need to be equipped to guide their clients in this evolving landscape, helping them navigate the complexities of self-regulation.
Academia has a key role to play in preparing the next generation of lawyers to understand and apply soft law. By incorporating self-regulation into legal curricula, law schools can ensure their students are prepared for the future of law, where self-regulation will be as critical as traditional regulatory frameworks.
Law schools that fail to integrate soft law into their curricula risk leaving their students ill-prepared for the realities of modern legal practice.
By incorporating self-regulation into their programs, law schools can ensure their graduates are not only proficient in traditional legal areas but are also equipped with the innovative problem-solving tools needed to address the challenges of the 21st century.
If you have questions about curriculum implementation or adaptation, or if you would like to request the various curriculum resources, contact the CISR team here.