Timothy D. Lytton

The Taming of the Stew: Regulatory Intermediaries in Food Safety Governance

Based on a case study of food safety governance, this article examines how rule-makers can employ additional intermediaries to address agency problems between the rule-makers and the initial intermediaries upon whom they rely to govern targets of regulation. Reliance on additional intermediaries can reduce agency problems between rule-makers and initial intermediaries, without replicating those problems between the rule-makers and the additional intermediaries. This analysis also reveals that, in some cases, intermediaries make rules, which blurs the distinction between rule-makers and intermediaries. Moreover, in complex governance networks, such as the food safety system, it is misleading to attribute the origin of many governance standards to authoritative “rule-makers.” Instead, standards emerge out of network interactions. The article concludes that by favoring the term “regulator” rather than “rule-maker,” the RIT model can avoid mischaracterizing rulemaking in complex regulatory systems without compromising its explanatory power with regard to reliance on intermediaries.

Competitive Third-Party Regulation: How Private Certification Can Overcome Constraints That Frustrate Government Regulation

Abstract Private certification as a means of risk regulation and quality assurance can offer advantages over government regulation, including superior technical expertise, better inspection and monitoring of regulated entities, increased responsiveness to consumers, and greater efficiency. This Article examines two examples of reliable private certification in regulatory arenas - fire safety and kosher food - where political opposition and resource constraints have frustrated government regulatory efforts. The Article identifies key features of reliable private certification and analyzes its comparative institutional advantages over government regulation. Critics of private certification question its legitimacy, asserting that private regulation is less participatory, transparent, and accountable than government regulation. The Article responds to these claims, arguing that the two examples of private certification presented here compare favorably with government regulation based on these criteria of legitimacy

Using Litigation to Make Public Health Policy: Theoretical and Empirical Challenges in Assessing Product Liability, Tobacco, and Gun Litigation

In the debate over the use of litigation to make public health policy, proponents and critics of the litigation disagree over the proper role of courts in policy making. Proponents assert that courts have an essential role to play alongside legislatures and administrative agencies in making public policy. They point to the failure of legislatures and agencies to regulate product safety, tobacco, and guns more aggressively as justification for a policy making role for courts. Critics insist that the job of courts is to resolve private disputes and to enforce legislative mandates, not to make public policy. Judges, they argue, make poor policy makers because they lack both the necessary tools and the democratic credentials of legislatures and agencies. Using the courts to make public policy will, in the end, critics suggest, politicize the judiciary, undermine the integrity of the litigation process, and erode public confidence in the courts. This article examines these arguments and argues that (1) the two sides rely on competing ideals of the proper role of courts drawn from constitutional law, both of which are inapposite to the traditional policy making role of courts in the context of civil litigation; and (2) the central arguments of each side require further theoretical elaboration and empirical support.

'Shall Not the Judge of the Earth Deal Justly?': Accountability, Compassion, and Judicial Authority in the Biblical Story of Sodom and Gomorrah

In this Essay, I argue that the Biblical portrayal of God as a person, and, in particular, as a judge, offers an attractive model for human judicial authority. I examine Genesis 18:16-32, the story of Abrahams questioning of Gods judgment concerning Sodom and Gomorrah, along with Rabbinic commentaries. The God who speaks with Abraham in these texts offers a model of legal authority that is engaged and responsive. Using God as a model, this Biblical passage and the Rabbinic commentaries that accompany it present accountability and compassion, rather than wisdom or power, as the preeminent judicial virtues and the foundation of judicial authority. By portraying God as a person, bringing Him down to earth (as it were), the Bible helps us appreciate that Gods actions can serve as a model for our own. In contrast to the conceptual analysis of God as omnipotent and omniscient, which sets Him up as a foil for human authority, the literary portrayal of God as a person highlights the ways in which we can be like Him. Gods behavior during His encounter with Abraham in Genesis 18:16-32 models judicial virtues that we can emulate - virtues that lend legitimacy to human power.

The Pros and Cons of Litigation in Public Health

This presentation concerns “Legal Mobilization for Mental Health: A Case Study in Public Health Advocacy.” It is a report on a study which looks at how and why mental health interest groups use litigation as part of their advocacy strategy, the role they assigned to litigation versus other tools, and the consequences of their use of litigation. By way of background, there are three categories of litigation typically found in mental health: litigation relating to the violation of rights, litigation clarifying eligibility requirements for various types of public programs, and litigation focusing on the interpretive clauses in private health insurance contracts which limit coverage for mental health or psychiatric care and/or coverage for services for those with mental illness. This was a qualitative study that used a multiple case-study design. The cases involve four advocacy groups: the Bazelon Center for Mental Health Law, the National Alliance for the Mentally Ill, the National Mental Health Association, and the Mental Health Association of Southeastern Pennsylvania. The study’s findings, in brief, were that the primary effects of using litigation were twofold. First, litigation was used to expand the advocacy group’s options. By employing the law, they were able to develop supportive legal theory, file amicus briefs, exert political leverage, and educate the public. Second, the extent to which the groups used these options varied according the group’s goals and available resources and whether they were a national or state advocacy group. The secondary effects of using litigation were more significant and included enhanced power, leverage, credibility, and threat. These effects, in turn, reinforced the continued use of litigation. The use of litigation also had a spill-over effect by benefiting other mental health advocacy groups that did not litigate. In more detail, the secondary effects of litigation highlighted and brought visibility to the problem, caused the issue to be recognized as a problem by policymakers, prompted creation of new laws and legislation, by-passed the bureaucracy and politics, gave leverage to state and local mental health officials, served as a catalyzing agent and rallying point for consumers and advocates, coalesced advocacy groups, and stimulated other types of advocacy. Litigation focused attention on the failings of the public mental health system and, in one case, embarrassed the state into implementing changes by holding governments and officials accountable. In addition, litigation often “drove” state decision-making, gave the advocacy groups “a seat at the table,” and captured media attention. In none of the four cases was litigation used as the sole strategy. Instead, it enhanced lobbying, grassroots activity, and other strategies. The advocacy groups, in fact, perceived litigation alone as ineffective, serving more as the “teeth and the ”threat” that makes other advocacy efforts more effective. It is very clear from this study that litigation contributed significantly as a rallying point to mobilize and organize mental health advocates. It also stimulated consciousness of rights among consumers and more broadly among the public and decision-makers. Litigation increased the groups’ access to policymakers and mental health officials and that goal was a consideration in selecting litigation as a tool on both the national and the state levels. In summary, this study demonstrates, first, that mental health advocacy groups used litigation strategically as part of a comprehensive approach; second,

Oversight of Private Food Safety Auditing in the United States: A Hybrid Approach to Auditor Conflict of Interest

Modern food governance is increasingly hybrid, involving not only government, but also industry and civil society actors. This book analyzes the unfolding interplay between public and private actors in global and local food governance. How are responsibilities and risks allocated in hybrid governance arrangements, how is legitimacy ensured, and what effects do these arrangements have on industry or government practices? The expert contributors draw on law, economics, political science and sociology to discuss these questions through rich empirical cases.

Jewish Foodways and Religious Self-Governance: The Failure of Communal Kashrut Regulation and the Rise of Private Kosher Certification

More products in the typical American supermarket are labeled kosher than are labeled organic, natural, or premium. Generating more than

Tort Claims against Gun Manufacturers for Crime-Related Injuries: Defining a Suitable Role for the Tort System in Regulating the Firearms Industry

12 billion in annual retail sales, kosher food is big business. Surprisingly, of the estimated twelve million American kosher consumers — individuals who specifically seek out kosher-certified foods — only 8 percent are religious Jews who eat exclusively kosher food. Most choose kosher food for reasons related to health, food safety, taste, vegetarianism, and lactose intolerance or to satisfy non-Jewish religious requirements such as halal. The popularity of kosher food is part of a more general infiltration of traditional Jewish foodways into American culture, a phenomenon reflected in the successful marketing slogan ‘‘You don’t have to be Jewish to love Levy’s real Jewish Rye.’’Kosher certification has been a medium for influence between Jewish and American culture in both directions. At the same time that kosher certification illustrates the infiltration of traditional Jewish foodways into the American mainstream, the turbulent history of kosher certification in the United States demonstrates how quintessentially American legal and economic institutions have shaped Jewish communal self-governance. Religious liberty and free markets in America undermined the thousand year-old kehilah model of kosher regulation, which was based on state supported centralized communal control over religious standards and economic activity. These same features of American liberalism nurtured the emergence of a highly successful system of private entrepreneurial kosher certification agencies.

Kosher: Private Regulation in the Age of Industrial Food

Gun violence is a serious problem in the U.S. For many years, in order to decrease gun violence, the sale and possession of firearms has been regulated by statute. This article argues that tort claims against gun manufacturers can complement legislative regulation, providing gun sellers and manufacturers with incentives to take reasonable measures to prevent gun sales to criminals. The article does not, however, endorse all tort claims against the gun industry. It argues in favor only of narrowly tailored claims that identify specific marketing and sales practices that increase the risk that guns will be used to commit crimes. The likely effect of such claims would be to make the firearms industry more responsible and to reduce gun violence. This article advocates an essential, albeit secondary, role for the tort system in regulating the gun industry. Legislatures ought to decide whether and under what circumstances the sale of guns should be legal. The tort system, by means of liability exposure, ought to discourage attempts by manufacturers to legally circumvent the aims of the regulatory system. On one hand, this article advocates a greater role for the tort system than those who view tort claims against the gun industry as illegitimate attempts to achieve more stringent regulation of the gun industry through the court system, following failure to do so in state legislatures and Congress. On the other hand, this article advocates a more modest role for the tort system than those who view the tort system as a primary source for industry reform, free of the corrupting political influences that distort legislative policy making.