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In My Opinion
In Praise of the Fat Lady

/by Morris (Mo) Brooke/


Why is it that we are so enamored in this country with the concept of “appeal”? Why do we absolutely insist that every decision made by every body, public and private, must be subject to review by someone else? We are so wedded to the idea that we never even stop to question whether the “someone else” is actually in a better position to reach a sound result than the original decision maker(s). This doesn’t seem to matter. All that matters is that there be an opportunity to continue on to another level. Appeal is so embedded in our culture that one wonders whether in this country the “fat lady” is still alive and whether we will ever get the opportunity to hear her sing again.

Our everything-must-be-appealable mindset has substantial implications for voluntary consensus standards development—none of them, in my judgment, positive. Take, for example, the elaborate investigation of the private sector standards development system undertaken by the Federal Trade Commission a number of years ago. After more than two years of collecting information, and six months of hearings, the Commission concluded that ASTM and similar organizations had model processes for standards development with one exception: they had no bodies to which the decisions of their technical committees could be appealed. It was fruitless to point out, as we did repeatedly, that when a consensus is reached among interested and affected parties within a technical committee operating under due process, that’s as good as it gets. There is no meaningful place to “appeal” from there. Who else is going to review, meaningfully, the consensus decision of all interested and affected participants? Our point fell on deaf ears. The Commission staff was sure that the absence of someone to appeal to had to be a fundamental flaw.

The periodic (and happily infrequent) forays of government “watchdog” agencies into the standards world have shown the same mindset. These forays, usually on antitrust or public safety grounds, have always boiled down sooner or later to the basic proposition that the agency, for its own reasons, just didn’t agree with the decision made by a technical committee. In the view of the agency, the standard was “too tight” (it excluded a product from the marketplace and was therefore anti-competitive) or “too loose” (it allowed a defective product into the marketplace that was a threat to public safety). Apparently in each of these cases only the agency, like Goldilocks, could tell when the porridge was “just right.” Do we dare ask a critical question of this system of appeal under the guise of agency oversight? If you had to choose between the consensus decision of an ASTM technical committee, and the decision of, say, a group of Justice Department lawyers, on the substance of a standard, which decision would you think was likely to be sounder, more technically reliable, and more in the public interest?

Perhaps even worse than agency oversight is the omnipresent “oversight” of America’s legal system. There we have a literal army of folks waiting to second-guess any decision made by anybody on any subject—all on so-called “legal” grounds. In the legal forum we examine all decisions including the consensus decisions of technical committees on standards. Here the decision of a group of people, many of whom are experts in the field, who have years and years of combined experience, who have all the relevant information on the subject and have reached their decision after listening to all views, is “reviewed” for soundness by a legal process that (1) allows only a limited amount of information to be considered (that which can pass through the strainer of a complex set of evidentiary rules); (2) allows no one to be heard (unless they are a party to the proceeding and speak through their lawyer); and (3) asks a group of people with no competence in the subject and no experience to do the reviewing. Do we seriously believe that this process is going to produce a sounder, more “legal,” more public-interest result than the one arrived at by the technical committee?

It seems to me that it is long past time for us to give some serious thought in this country to the whole question of just how appealable and reviewable a lot of the decisions made by our duly-constituted bodies, public and private, should be. I would put the consensus decisions of our standards development committees on that agenda.

I don’t see the Supreme Court ever reaching this issue. The only cases it has had a crack at (Hydrolevel and Allied Tube) have involved unique, almost bizarre, situations that have had nothing whatever to do with mainstream standards development as practiced by many organizations in this country including ASTM. Instead of sorting out some real issues, such as appealability and scope of review, these cases have just armed anybody who disagrees with any decision of any technical committee with a case or two to cite (however inapplicable the citation).

Perhaps Congress can be persuaded to address the situation. Congress certainly gets high marks in my book for advancing the cause of voluntary consensus standardization through such recent enactments as the National Technology Transfer and Advancement Act. But will we ever be able to persuade Congress that the decisions of our technical committees are entitled to some immunity from the kind of second-guessing and “another bite at the apple” stuff that goes on now? I doubt it.

So now what? So now I engage on an almost daily basis in wishful thinking. Wouldn’t it be nice if the decision of a duly constituted technical committee operating in accordance with consensus procedures was allowed to be final? Wouldn’t it be nice if just in this one small area we could bring ourselves to accept the reality that there is no meaningful appeal or review that will guarantee a sounder result? I don’t know whether the “fat lady” is still alive. I hope she is. And if she is, when a duly constituted technical committee, operating under consensus procedures, has made its decision, I, for one, am prepared to let her sing. //

Copyright 2000 ASTM

“It seems that it is long past time for us to give some serious thought to the question of just how appealable and reviewable a lot of the decisions made by our duly-constituted bodies, public and private, should be.”

Morris (Mo) Brooke is ASTM’s general counsel.