Search Westlaw or LexisNexis for the term “The Sedona Conference” (206) “ISO Standard” (72) or “EDRM” (1), and the query will yield a sample of cases across the country where these organizations have made an impact on law in the United States. “Standard setting organizations” (SSOs), like these and many other groups, set guidelines and benchmarks that parties cite in pleadings and motion papers as secondary materials that courts often reference in published opinions.

Interestingly, secondary materials have a very good shot at defining standards of care that courts expect in litigation—even when a key stakeholder might not have had the opportunity to participate in the dialogue that generated the cited materials. These materials could be generated years before an interested organization was aware of the opportunity to represent their interests in developing SSO guiding principles. Secondary materials make their way into actual precedent cited by other courts—not just dicta. The influence that secondary sources have on American jurisprudence and the development of law is simply more than a generation of practitioners raised on “I’m Just a Bill” can fathom.

Standards Are Set Without Stakeholder Participation

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