Broken Scales: Obesity and Justice in America

Abstract:     
This Article provides a broad assessment of the American obesity epidemic from the perspective of "critical realism," an innovative approach to legal analysis developed by the authors in previous articles. The article is focused on exploring the vast divergence between common sense views of the sources of obesity - which typically attribute the phenomena to the individual, private choices of consumers - and the very different conception of the sources of obesity that emerges from the social sciences, which are typically much more focused on environmental influences on consumption behavior. The article endeavors to develop an approach to the legal analysis of obesity that is responsive to the social scientific findings, rather than merely patronizing to the common sense view. Further, the Article examines the ways in which the food industry has exercised powerful influence, often in unseen ways, over consumer behavior in the food market, even as the industry has evaded responsibility for the ensuing obesity epidemic by promoting to regulators, as well as to consumers themselves, the view that consumer behavior in the food market reflects the preference driven choices of individual consumers, which the industry claims merely to satisfy.

Accepted Paper Series