1 Albert & Angela Farone Distinguished Professor of Law, Albany Law School. I am grateful for extensive suggestions from Hanoch Dagan, Scott Gabriel Knowles, Lesley McAllister, Bob Rabin, Peter Schuck, Steve Sugarman, and Michael Vandenbergh on an earlier draft of this Article. I also received many helpful comments from participants in a conference on New Approaches for a Safer and Healthier Society, May 20-22, 2013, organized by the Cegla Center for Interdisciplinary Research of the Law at Tel Aviv University. Funding for this project was provided by an Albany Law School Summer Research Grant
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
Theoretical Inquiries in Law (TIL) is devoted to the application to legal thought of insights developed by diverse disciplines such as philosophy, sociology, economics, history and psychology. The range of legal issues dealt with by the journal is virtually unlimited, subject only to the journal’s commitment to cross-disciplinary fertilization of ideas.