Over two decades ago, the Jack in the Box E. coli outbreak, in which five victims died, and hundreds more were seriously injured, dramatically changed the way the world looked at food and food safety. Although deemed “trivial” by tort scholars, who nonetheless used legal doctrines first developed in food cases to justify the extension of strict liability to all products, this article uses the Jack in the Box outbreak as a point of departure for exploring not only the relationship between food, being, and knowledge, but to posit that commerce in food, and the inevitability of profit-motivated food adulteration, are central to the presumed need for regulation of quality. What this presumption ignores, however, is that regulation creates the possibility of, and in fact promotes, large-scale food systems in which the anonymity and invisibility necessary to adulteration can and will occur. When food is manufactured and marketed on a smaller, more local scale, especially as a by-product of a community’s efforts to feed itself, there is no corresponding need for regulations because the expectations of quality become largely self-enforcing and care in making increases. It is only when food-production becomes external to community, and the subject of faceless transactions, that the need for regulation appears to be imperative. This regulatory imperative is also facilitated by a modern conception of products as that which exist independent of any “real” maker, a conception that is undermined if food is used as a means of critique. Finally, looking at how the relations and interactions of people can be described as falling along a spectrum from the face-to-face to the faceless, and at the relation of people to products (especially food products), the article concludes with the bold claims that (1) law makes food less safe by facilitating commerce and thus anonymity in the market, and (2) the effectiveness of law should be judged by how well it facilitates community and, as a result, makes law less apparently needed, not more.
A Continuing Plague: Faceless Transactions and the Coincident Rise of Food Adulteration and Legal Regulation of Quality, 2014 WIS. L. REV. 421