- Suppose we had a law stating everyone must carry a fish when driving their car on the interstate.
- Suppose an organisation called ANSI starts selling haddock at all the turnpikes
- Suppose the Federal Register incorporates by reference the fact that haddock are a type of fish.
Malamud would then argue that the only way to satisfy the law is to drive the car with a haddock, and that it's unfair that ANSI holds a monopoly on haddock.
In fact, all anyone has to to to satisfy the hypothetical law is prove that they also have a fish (mackerel, cod, tuna, etc) in their car. They do not need to use an ANSI approved haddock, even if ANSI has established a robust legal precedent that all haddock are indeed fish.
The same is true of building codes and safety standards.
The standards produced by ANSI and the like are one way, amongst many, of satisfying the law. If you follow their standards, you can be reasonably sure that you have satisfied the legal requirements governing your work, and you might pay for the convenience of having a standard prepared for you.
If Malamud wants to publish free standards that allow compliance with the law, his option is to devise an independent standard that meets the same legal requirements for approval as ANSI and the like have already met. Then after conducting his work, he can give the results of his work away for free.