Saturday, April 11, 2009

The "Hair Club for Men" Theory for Regulating Food Safety

Ian Ayers (Yale law) and Peter Siegelman (UConn Law) have posted a suggestion for regulating food safety: establish that the company CEO uses the product.  In other words, "I'm not only the president, I'm also a client."   See the idea developed more fully here at Freakonomics blog or here on Balkinization

Now for some civil procedure free association.  At the oral argument in the Iqbal v. Ashcroft case in the Supreme Court this term, Justice Breyer asked if a plaintiff finds a mouse in a can of cola, can he depose the CEO of a cola company?  If government regulations required the CEO to drink the cola, is the answer yes?  The answer it seems to me should be no, unless there is some demonstrable reason to depose the CEO (that is, deposing him or her will lead to the discovery of admissible evidence).  Just tasting the Cola is not such a reason, although "plausibly" alleging that the CEO had learned of the mice in cola and let the cola be distributed nevertheless or conspired to place mice in cola might be sufficient (at least, until Iqbal comes down). The majority of the members of the Court seemed to think that letting a CEO be deposed is pretty much the end of the world.  (Quite a turnaround from the Court's position that a civil suit against the President can proceed, including depositions.)  I wonder what they would make of forcing CEOs to eat the peanut butter their companies produce.


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