An Update on Food Labels

I’ve gotten some on- and off-line comments about my federalism-in-food-labeling post from over the weekend. One reader points out that the market is already experimenting with food labeling, through chains like Whole Foods and Trader Joe’s, which negotiate with food manufacturers for certain production & labeling practices. Thus, if you want to do business with Whole Foods, you need to avoid a really long list of additives. Trader Joe’s, which acknowledges FDA preemption of food labeling here, is quite proud of its business of re-branding private label products so that consumers can be assured of quality and price guarantees. As the reader concluded, we can see the success of such stores as an expression of consumer demand for labeling. In reality, people don’t want to actually know what is in products, they want to know that food is safe, healthy, pro-environment, etc. When you buy at Whole Foods, you get the comfort of your convictions, without actually having to read the fine print: the store has done it for you. On this understanding, we don’t need states to experiment with label design or content: the market will sort out this problem nicely.

Another reader heatedly claims that I’ve underestimated the cost of labeling products for multiple states. So long as producers, and not distributors, do the labeling, it will be cost-prohibitive. My response to that argument is that current labeling practices are contingent on the FDA’s top-down command and control system. In a world with 50 different state practices, labeling would likely be done on-site through, say, the same type of sticker machine that currently set prices. The reader, in turn, maintains that the costs of labeling ought to considered in light of the negligible consumer benefits, and asserts that studies have found only 11% of supermarket consumers actually read labels before purchasing products. This number is debatable, of course. (A study here claims that 56% of subjects read labels some of the time). But the point that inconsistent labeling regimes would put severe burdens on smaller manufacturers obviously a good one, and would caution against allowing experimentation when the pro-consumer effects are as yet not quantified.


Motion Denied for Incomprehensibility

This humorous court order was sent to me by my former colleague Charlie Sullivan (law, Seton Hall). The case is In re Richard Willis King Debtor, (U.S. Bankruptcy Court, W.D. Tex. Feb. 21, 2006), Bankr. Case No. 05-56485-C. The order, from U.S. Bankruptcy Judge Lief Clark, states:


Before the court is a motion entitled “Defendant’s Motion to Discharge Response to Plaintiff’s Response to Defendant’s Response Opposing Objection to Discharge.” Doc. #7. As background, this adversary was commenced on December 14, 2005 with the filing of the plaintiff’s complaint objecting to the debtor’s discharge. (Doc. #1). Defendant answered the complaint on January 12, 2006. Doc. #3. Plaintiff responded to the Defendant’s answer on January 26, 2006. Doc. #6. On February 3, 2006, Defendant filed the above entitled motion. The court cannot determine the substance, if any, of the Defendant’s legal argument, nor can the court even ascertain the relief that the Defendant is requesting. The Defendant’s motion is accordingly denied for being incomprehensible.*

* Or, in the words of the competition judge to Adam Sandler’s title character in the movie, “Billy Madison,” after Billy Madison had responded to a question with an answer that sounded superficially reasonable but lacked any substance,

Mr. Madison, what you’ve just said is one of the most insanely idiotic things I’ve ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy

on your soul.

Deciphering motions like the one presented here wastes valuable chamber staff time, and invites this sort of footnote.



Internet Censorship and the US Military

marines1a.jpgIf you learned that certain blogs and websites are being censored for having political content, you’d say: “That’s no surprise. China does it all the time.” Well, it’s not just China . . . the US Military appears to be taking some lessons from the Chinese government. A few days ago, Wonkette discussed an email it purportedly received from a soldier in Iraq complaining of Interent censorship. The email stated:

Just to let you know, the US Marines have blocked access to “Wonkette” along with numerous other sites such as personal email (i.e. Yahoo, AT&T, Hotmail, etc), blogs that don’t agree with the government point of view, personal websites, and some news organizatons. This has taken effect as of the beginning of February. I have no problem with them blocking porn sites (after all it is a government network), but cutting off access to our email and possibly-not-toeing-the-government-line websites is a bit much.

Another email posted recently on Wonkette is even more troubling:

Anyway, I had a few minutes today and thought I’d look and see what else was banned on the Marine web here. I think the results speak for themselves:

* Wonkette – “Forbidden, this page (http://www.wonkette.com/) is categorized as: Forum/Bulletin Boards, Politics/Opinion.”

* Bill O’Reilly (www.billoreilly.com) – OK

* Air America (www.airamericaradio.com) – “Forbidden, this page (http://www.airamericaradio.com/) is categorized as: Internet Radio/TV, Politics/Opinion.”

* Rush Limbaugh (www.rushlimbaugh.com) – OK

* ABC News “The Note” – OK

* Website of the Al Franken Show (www.alfrankenshow.com) – “Forbidden, this page (http://www.airamericaradio.com/) is categorized as: Internet Radio/TV, Politics/Opinion.”

* G. Gordon Liddy Show (www.liddyshow.us) – OK

* Don & Mike Show (www.donandmikewebsite.com) – “Forbidden, this page (http://www.donandmikewebsite.com/) is categorized as: Profanity, Entertainment/Recreation/Hobbies.”

If this email is true, I find it to be quite troubling. It is disturbing enough that the government is censoring political views from US soldiers. It is ironic that we are denying democratic discourse to our troops who are busy attempting to spread democracy in the Middle East. And it is really alarming if only certain political viewpoints are being censored while others are not. Anyway, this story just seems too outrageous to be true, and I sure hope it isn’t.


Making Administrative Law Au Courant

Okay, now that the first post is out of the way, a little bit about myself. I write about administrative law, often about alternatives to traditional Administrative Procedure Act rulemaking, whether done by agencies themselves or by other lawmaking institutions, like district courts. And I’m becoming a veteran guest blogger, a – dare I dream? – poor man’s Paul Lynde of the legal blogosphere.

Some administrative law teachers have been accused of being secret aficionados of constitutional law, which they proceed to teach – somewhat dryly, I imagine – to their adlaw students. Instead of learning the regulatory process alone, these students also get lengthy instruction on, say, constitutional canons of interpretation and the separation of powers, all in the somewhat weak light of EPA rulemakings and ICC adjudications.

I’m not a secret conlaw guy, although the subjects above have reared their heads in my adlaw class. But I am closely watching the growth of another sort of administrative law scholarship that might have its heart – or part of its brain, anyway – in another legal discipline. Two NYU professors have founded a Global Administrative Law Project, international relations scholars remain abuzz about the development of transgovernmental relations, and the growing importance of global networks of regulators have been the subject of a series of panels at the American Society of International Law Annual Meeting.

Have we entered the era of International Administrative Law?

Read More


Justice Breyer At Alabama

This afternoon, Justice Breyer gave the Albritton Lecture at the University of Alabama. His talk was uncontroversial, as he staked out all the positions one might expect. Citation of foreign law? If it’s helpful to read materials from other nations, why wouldn’t we? We aren’t bound by them. Kelo? Surprised by all the uproar since this seemed to have been the law since FDR. Being tagged as an activist? You’ve got the wrong Justice! Just take a look at that study by Gewirtz and Golder.

Breyer’s visit was still well worth the candle. We’ve had a string of Justices join us in Tuscaloosa, over the last few years, a happy side benefit to our Hugo Black Fellow Program. (Former Supreme Court clerks come and teach a light load for a year, giving them a chance to test out the job and write in relative peace.) They humanize the Court and make everyone feel a little better about the institution. Justice Thomas was immensely popular among students – as he is, apparently, among clerks. He spent time, lots and lots of it, answering student questions, shmoozing one-on-one. He managed to disarm even those folks who were prepared to loathe him.

Breyer had a different battle on his hands visiting the Heart of Dixie. Many students probably expected a liberal activist. (The opening question, asking him how he believed the Constitution protected property rights, gives you a sense of things. ) With his emphasis on the primacy of legislative decisionmaking – hardly a surprise from the author of Booker’s advisory sentencing guidelines opinion. – I suspect that many students found him remarkably unthreatening. They are correct. Those seeking a left-wing bogeyman on the Supreme Court will have to look elsewhere. To paraphrase Alex Kotlowitz, There Are No Liberals Here.

Health Care: The Big Picture

Paul Krugman and Robin Wells have a long review piece in the NYRB correcting some common misperceptions of the U.S. health care system. They provide good empirical evidence that we both spend more than comparable countries and get worse results overall. Our system is “is unique in denying necessary care to people who lack insurance and can’t pay cash.”

When I talk about such chronic underperformance, I’m often “reminded” that while the U.S. may have an infant mortality rate that’s higher than Cuba’s, it’s still the best place for someone with insurance to get sick. Krugman and Wells chip away at this notion as well, pointing out that:

The frequent claim that the United States pays high medical prices to avoid long waiting lists for care also fails to hold up in the face of the evidence: there are long waiting lists for elective surgery in some non-US systems, but not all, and the procedures for which these waiting lists exist account for only 3 percent of US health care spending

Also, anyone who’s visited an ER lately has experienced the “spillover effects” of 41 million uninsured: endless waits as bad coughs and chronic pain that should have been treated in a doctor’s office get routed to providers of last resort. Sadly, policymakers who might be exposed to this demoralizing spectacle tend to circumvent the normal triage procedures. Economic apartheid distorts their perception of reality.

So what to do? Krugman and Wells recommend Democrats “go for broke” and propose a “single payer” plan, but there are some problems with that…

Read More


Why Hasn’t Efficient Breach Killed Tenure?

Hi, everyone. Posts on my own scholarship to come, but why not begin with some questions about the institution of scholarship more generally?

Perhaps inspired by the latest shenanigans by the purportedly wild eyed radicals on the Harvard arts and sciences faculty, there’s been some gnashing of teeth about the tenure system. Tenure sure is a unique term in an employment contract. There’s no similar job security for artists, novelists, or journalists. Do academics really deserve better? Do they deserve stronger protections against termination than, say, civil servants (as an administrative law guy, when someone says “job,” I think “federal pay grade”)?

I wonder. But I also wonder why, if tenure begets mediocrity, deans don’t simply fire the tenured professors they don’t like, and present them with big breach of contract damages checks after doing so. Not every institution could afford to do so, of course, but some assuredly could – I’m looking at you, Harvard. And, while we’re engaging in a bloody-minded thought experiment, I also doubt that the regulatory protections against dismissal that tenured professors enjoy – deaccreditation or probation by a university licensing outfit, for example – are really the kind of sanctions that rich, established schools have to worry about, even if they decided to clean house in an unprecedented way. Who would disaccredit the Ivy League?

So the way I see it, the death of tenure is something that schools could make happen – they just haven’t chosen to do so. Maybe it’s an implied endorsement of the tenure system, or maybe it’s a sign of path dependence. As someone who sure would like to get tenure, I hope this unexercised power suggests that the system is a benign one. But I’d welcome explanations of tenure’s survival in light of what seems to me to be a rather delicate position.


Introducing Guest Blogger David Zaring

zaring2.jpgWe are very happy to announce that David Zaring will be joining us as a guest these next few weeks. David is a professor of law at Washington & Lee University School of Law. Prior to joining Washington & Lee, David was a professor in New York University School of Law’s lawyering program. He worked at the U.S. Department of Justice Civil Division, was Special Counsel at the U.S. Department of Housing and Urban Development, and clerked for Hon. Judith Rogers, U.S. Court of Appeals for the District of Columbia Circuit and Hon. Wm. Matthew Byrne, Jr., U.S. District Court for the Central District of California.

David teaches administrative law and international trade, and he writes in domestic and international administrative law. Recent publications include: Best Practices, 81 NYU L. Rev. (forthcoming 2006); Informal Procedure, Hard and Soft, in International Administration, 5 Chi. Int’l L.J. 547 (2005); National Rulemaking Through Trial Courts: The Big Case and Institutional Reform, 51 UCLA L. Rev. 1015 (2004). Additionally, David has two more forthcoming works: The Use of Foreign Decisions by Federal Courts: An Empirical Analysis, 3 J. Emp. Leg. Stud. (forthcoming 2006); What’s Next for Networks, 2 Ann. Rev. of L. & Soc. Sci. (forthcoming 2006) (with Anne-Marie Slaughter).

Please give David a warm welcome!


Introducing Guest Blogger Frank Pasquale

pasquale.jpgWe are delighted that Frank Pasquale will be joining us for a guest stint over the next several weeks. Frank is a professor of law at Seton Hall Law School. He holds a BA from Harvard, an M.Phil. in Politics from Oxford University (as a Marshall Scholar), and a JD from Yale Law School. Prior to joining the Seton Hall faculty, Frank clerked for the Honorable Judge Kermit Lipez of the United States Court of Appeals for the First Circuit, served as a fellow at the Institute for the Defense of Competition and Protection of Intellectual Property in Lima, Peru, and was an attorney at Arnold & Porter in Washington, DC. Frank focuses his scholarship on intellectual property and health law, and he has a broad-ranging interdisciplinary approach that draws from economics, philosophy, and social science.

His recent scholarship includes, Toward an Ecology of Intellectual Property, forthcoming in the Yale J. Law & Tech. (Fall 2005); Breaking the Vicious Circularity: Sony’s Contribution to the Fair Use Doctrine, 55 Case W. Res. L. Rev. 777 (2005); Beyond Napster: Using Antitrust Law to Advance and Enhance Online Music Distribution, 8 B.U. J. Sci. & Tech. L. 451 (2002) (with Kimberlee Weatherall and Matthew Fagin); and Two Concepts of Immortality: Reframing Public Debate on Stem Cell Research, 14 Yale J.L. & Human. 73 (2002). His recent works-in-progress include Rankings, Reductionism, and Responsibility (about search engine regulation) and The Law and Economics of Information Overload Externalities.

We’re very excited to have Frank join us as a guest!


Experimenting With Food Labels

label.jpgSteve Bainbridge highlights pending federal legislation to preempt state food label rules that are inconsistent with the FDA’s standards. He comments that the law would be a “perfectly plausible exercise of Congress’ power under the Commerce Clause.” I agree, even though there are non-frivolous arguments to the contrary (federalism concerns for states’ police powers; locally grown foods; etc.) But putting aside constitutional shibboleths, I think that just because Congress has the ability to preempt state legislation doesn’t mean it should.

The argument against allowing states to add new disclosure requirements to food labels goes like this. The great competitive strength of the American economy is its internal free trade network. Inconsistent regulation internally is to be avoided where possible, because it results in inefficiencies as producers are forced to retool their products for different states. Moreover, producers must increase their legal compliance costs, hiring lawyers to keep track of regulations in the several states, capture regulators lobby in 50 state legislatures, etc.

But such arguments discount the benefits of permitting experimentation in dealing with cognitive problems. The science of information processing is still relatively young: we haven’t gotten a handle on what disclosures trigger what types of consumption activity. As Larry Ribstein argues in a very different context here allowing states free reign to try different regulations will – as Brandeis long ago argued – create a natural laboratory allowing experimentation in reducing cognitive error. States that require disclosure of facts that consumers find unimportant will soon receive feedback to that effect. Similarly, if producers (as expected) increase prices in markets requiring more disclosure, we could obtain some evidence as to how much consumers actually value labeling. [This could get complicated given cross-border purchasing and free-rider problems, I suppose]. But most importantly, states could try different approaches to the problem of the method of regulation itself. Is the best way to encourage the right disclosure a rule (you must state the number of milligrams of sodium) or a standard (you must disclose information that consumers find valuable)? Should this process be run by regulators (as it is in the federal system) or the common-law jury?

We could start getting answers to such questions, but only if the feds back off.