The distinction between hard and soft law has been discussed largely in the context of international dispute resolution involving conflict of law issues. As defined by distinguished research scholars Kenneth Abbott and Duncan Snidal, hard law “refers to legally binding obligations that are precise (or can be made precise through adjudication or the issuance of detailed regulations) and that delegate authority for interpreting and implementing the law.” Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International Governance, 54 INT’L ORG. 421, 421 (2000). On the other hand, “[t]he realm of ‘soft law’ begins once legal arrangements are weakened along one or more of the dimensions of obligation, precision, and delegation.” Id. at 422.
It has been suggested that discussions regarding the application of soft law, as opposed to hard law, in the international context, have consequently opened the floodgates to widespread enquiry into these competing interests in a variety of other domestic settings, particularly its application within the U.S. judicial system. Although not commonly referred to as hard or soft law, at least in the domestic sense, the presence of similar considerations of obligation, precision, and delegation have been demonstrated in a variety of civilly litigated matters presented within evidentiary dispute based upon application of government versus industry standard. Accordingly, the three dimensional typology asserted by Abbott and Snidal in the international context, provides a useful analytical tool for evaluative purposes of purely domestic matters which reside in the U.S. judicial system.
For example, it is necessary to consider notions of obligation, precision, and delegation in commercial actions where the testimony sought to be admitted by a building code expert encompasses both regulations promulgated by the government, as well as those extending from codes of conduct formulated by the industry itself. Likewise, analogous considerations have commonly appeared in products liability actions, such as the case of Estate of Hicks v. Dana Companies, LLC, 984 A. 2d 943, 967 (Pa Super. 2009), wherein the court commented on the interface between conflicting types of codes, when applied for the purpose of assessing the presence or absence of defect:
“…[W]e are not persuaded by Appellants’ attempt to distinguish industry standards from government standards or regulations. Industry standards outline the practices common to a given industry. They are often set forth in some type of code, such as a building code or electrical code, or they may be adopted by the trade organization of a given industry. The safety requirements found in the OSHA regulations seem more analogous to building codes and other industry-specific safety guidelines than to scientific or medical developments representing the cutting edge of asbestos-related disease causation. Here, the OSHA standards direct employers, and not manufacturers, whose business makes use of asbestos in some manner to satisfy certain conditions for their workers’ safety. In this regard, the OSHA standard at issue provides nothing more than a code of conduct for employers much like building or electrical codes are codes of conduct applicable to those trades.”
In sum, testimonial considerations regarding the admissibility of evidence that can be characterized as soft law, necessitates an initial determination of its application in prior cases involving precisely the same theory of liability, and precisely the same jurisdiction. In such cases, it can be said that the prior acceptance of soft law in a particular matter and for a particular purpose has essentially evolved into hard law. In matters lacking the support of prior case law, the use of soft law must be limited, or in the very least, introduced with caution, inasmuch as its purpose is clearly labeled as being merely interpretive and revelatory to issues exclusively factual in nature, as well as utilized in conjunction with a limiting or explanatory jury instruction(s) having appropriate correlation.
By: Alicia McKnight, J.D.