RENA I. STEINZOR, University of Maryland - School of Law, Center for Progressive Reform
Email: rsteinzor@law.umaryland.edu

In the fall of 2008, Minnesota public health officials became alarmed by an unusually high number of illnesses and deaths caused by salmonella poisoning. Federal and state regulators and the news media eventually traced the outbreak back to products supplied by the Peanut Corporation of America (PCA). Employees shipped batches that tested positive for salmonella from a plant with a leaking roof, mold growing on ceilings and walls, rodent infestation, filthy processing receptacles, and feathers and feces in the air filtration system. Under an agreement with the Food and Drug Administration (FDA), Georgia state inspectors visited the PCA plant nine times in 2006-2008 but took no effective action to terminate any of these conditions. When called to testify before Congress, Stewart Parnell, PCA’s chief executive officer, invoked his Fifth Amendment rights, and the company itself is under criminal investigation. Food-borne illness causes 5,000 deaths, hospitalizes 325,000, and sickens 76 million annually. Incidents like those at PCA have spurred Congress to draft comprehensive legislation to strengthen FDA’s food safety programs, which cover 80 percent of the American diet. (The Department of Agriculture has jurisdiction over meat and poultry.) Yet under the leading piece of Senate legislation, such egregious conduct would remain punishable as a misdemeanor, triggering at most 0-6 months in jail if the Department of Justice even considered prosecuting those crimes. Industry groups like the Grocery Manufacturers of America oppose enhanced criminal and civil penalties, urging the FDA to focus on cooperative efforts to achieve compliance. The paper argues that the nation cannot afford to forego the substantial deterrent effects provided by severe criminal penalties, especially under the “responsible corporate officer� doctrine that applies to violations of the Food, Drug, and Cosmetics Act. That doctrine holds responsible any corporate officer who should know illegal practices are occurring and is in a position to stop them. In an era when regulatory agencies responsible for protecting health and safety cannot afford to inspect their way out of trouble, high profile enforcement is critical to efforts to improve the safety of the food supply.

ANNE MEUWESE, University of Antwerp, Faculty of Law, Leiden University, Faculty of Law
Email: anne.meuwese@ua.ac.be
YMRE SCHUURMANS, Leiden University
Email: srrn@law.leidenuniv.nl
WIM J. M. VOERMANS, Leiden University - Leiden Law School
Email: w.j.m.voermans@law.leidenuniv.nl

Under the joint responsibility of the Member States to implement EU law, administrative law systems of the EU are converging and a common body of EU administrative law is emerging. Most debates on this process of EU administrative law integration have focused on differences and divergences between national systems vis-à-vis the EU system. The concept of administration at the level of the EU, however, is difficult to compare to that in use in most domestic systems in continental Europe. In this contribution we bring the lens of the United States (U.S.) approach to the debate. The problems and challenges the EU administration faces do resemble those which confronted the federal administration in the U.S. more than 50 years ago. The article discusses some of the parallels between the U.S. and EU system and zooms in on the EU’s ‘problem zones’: preparation of regulation – in particular the role of participation and the use of evidence therein – and the position of agencies. On the basis of experiences with the Administrative Procedure Act (APA) in controlling the U.S. administration and the federal agencies, the contribution then reflects on the desirability of a general EU administrative law act, especially in view of the upcoming extension of judicial review of general rules the Lisbon Treaty will most likely bring. The conclusion is in short that the American APA offers food for European thought and that a lot could be gained with a European styled APA ‘light version’.

FREDERICK SCHAUER, University of Virginia School of Law
Email: schauer@virginia.edu

Debates about the obligation to obey the law have been around for literally thousands of years, but the empirical side has received much less attention. Moreover, most of the existing empirical work has focused on citizens and not officials, and consequently we know little about the extent to which law qua law motivates official action. This paper, presented as the John A. Sibley Lecture at the University of Georgia School of Law, draws on the jurisprudential and philosophical literature to frame the question of obedience to law, and then seeks to encourage empirical inquiry into the particular question of whether officials obey the law as law, independent of the content of the law and independent of the possibility of sanctions for non-compliance. It offers the hypothesis that although there is much talk about official obligation to the law, in fact officials rarely obey the law just because it is the law, and are rarely politically punished for engaging in sanction-free illegal actions when their constituents approve their first-order substantive decisions. For official behavior, therefore, there may be considerably less internalization of law than is commonly supposed. And if this hypothesis turns out to be true, the implications for public law may be considerable. Moreover, if sanction-free internalization of law is less common than many commentators believe, it would be appropriate to give renewed attention to the role of sanctions and coercion not only in securing compliance with law, but also in understanding the nature of law itself.

F. SCOTT KIEFF, George Washington University - Law School, Stanford University - Hoover Institution on War, Revolution and Peace
Email: skieff@law.gwu.edu
HENRY E. SMITH, Yale Law School
Email: HENRY.SMITH@YALE.EDU

This short essay written for a broad audience addresses the problems that are at the center of current debates in academic and policy circles about the patent system. Most current patent reform proposals are designed to give officials and courts more power to weaken or eliminate ‘‘unworthy’’ patents and take primary aim at so-called patent trolls. This essay argues that in light of the rapid, and excessive, changes that have already occurred in the courts, what patent law needs is a tweaking of existing safety valves and processes—not opening the floodgates to more discretion and uncertainty.