Value Hypocrisy and Policy Sincerity: A Food Law Case Study
Joshua Ulan Galperin
In the spring of 2017, the United States Senate considered a bill that would significantly change healthcare policy in the country. This began in 2009 and 2010 when Democrats in Congress and from President Obama’s White House crafted the Affordable Care Act. That process was the subject of criticism for its lack of transparency, seen as backroom secrecy designed to avoid public debate. Fast forward to spring 2017, as Republicans in Congress and from President Trump’s White House pushed another healthcare bill. In 2017, the same Republicans who criticized secrecy practiced it; the same Democrats who practiced it have criticized it. This is remarkably articulate hypocrisy, even for Washington, D.C. It clearly spotlights a procedural breach in which policymakers focus squarely on the outcomes of the policymaking process and ignore satisfaction with the process itself.
Scholars have long understood the importance of procedure. The legal and psychological literatures include robust consideration of procedural fairness. But the concept of hypocrisy—so abundant in politics—provides additional and novel insight into the appropriateness, legitimacy, and worth of policy instruments.
New research from psychologist Jillian Jordan and colleagues at Yale University reinforces that people hate hypocrisy, and suggests that the hatred is not because hypocrisy is ineffective or because hypocrisy demonstrates any specific instrumental weakness. Hypocrisy is condemned and unsatisfying because it is an intentional disconnect between the values signaled in words and achieved in deeds. We condemn an intentional disconnect between words and deeds, even if the hypocritical deeds are in some way useful. Thus, a policymaking process, such as that around healthcare, which signals transparency but practices secrecy, is unwanted hypocrisy regardless of one’s preference for more or less government involvement in health insurance. This Article argues that the concept of hypocrisy is a useful analytical tool in policymaking and policy advocacy.
The problem of hypocrisy in policymaking is obvious in the policy process, where the words and behaviors of politicians are so often in opposition. But this Article goes deeper to focus on hypocrisy in policy-instrument choice. A set of public values will motivate any given policy goal. For instance, the inherent rights of nature may influence the goal of better environmental quality. The instrument used to achieve the policy goal may or may not embody those same public values. Tradable pollution permits can achieve the goal of environmental protection, but buying and selling pollution may also undermine rights of nature as a motivating value. Hypocrisy arises here when the values of the instrument do not match the values that motivate the goal. Thus, to avoid hypocrisy, policymakers should develop and use policy instruments (roughly equivalent to an individual’s deeds) that reflect the values that motivate the policy goals (roughly equivalent to an individual’s words).
Drawing on the new Yale psychology research suggesting that people decry hypocrisy because of the disconnect between personal signaling and personal deeds, we might call the disconnects between the values sought in policy goals and the values reflected in policy instruments value hypocrisy. We may then call the alternative policy sincerity, in which the disconnect closes and the values that motivate a policy goal are embedded in the policy instrument.
The word values can raise more questions than it answers. To avoid unnecessary confusion, throughout this article, the standard dictionary definition applies. The Oxford English Dictionary defines “values” as “the principles or standards of a person or society, the personal or societal judgment of what is valuable and important in life.” Values, therefore, simply means the ideals, ethics, beliefs, opinions, or basic criteria people use for deciding what they want.
Given the unique importance of food to our bare survival and frivolous indulgences, this Article introduces hypocrisy as an analytical tool for instrument choice by using the area of food law and policy as a case study.
For example, Wal-Mart’s foray into the local food movement and the United States Department of Agriculture’s (USDA) National Organic Program breathe life into what have so far been general assertions. In 2010, Wal-Mart announced a program to double its sales of locally grown produce. While this program could have a range of outcomes—from economic growth to sustainability benefits—if the values that motivate local food activists are closer connections to farmers, or transparency in production, the giant retailer’s new program would not reflect those motivators. In organic agriculture, the USDA’s organic seal is now a ubiquitous symbol. The seal announces that farmers followed certain rules in raising or growing their products. If the value that motivates organic production is consistency, then a uniform federal National Organic Program probably advances this value. But, if the values include individuality, then the National Organic Program fails to capture this value. In other words, in both the private strategies of Wal-Mart or the public policies of the National Organics Program, there may be hypocrisy.
This Article makes two points about the connection between policy instruments and their motivating values. First, and most importantly, analysis of policy-instrument choice tends to focus on the ability of the instrument to achieve the policy goal. I argue that the non-instrumental nature of the policy tool—its value sincerity—deserves increased attention. That is to say, an instrument that can achieve a stated goal may nevertheless be suboptimal if it does not fit with the values that motivate the policy goal in the first place. This Article’s second point, which should serve as a case study to illuminate the first, is that common law litigation deserves more consideration as a food law and policy instrument because—in addition to consequential benefits of the common law—the common law fits well with the values such as community empowerment, participatory decision-making, and progressive traditionalism that motivate the food movement.
Section I of this Article surveys the ways in which policymaking strategies and legal doctrines intentionally prioritize either process or consequences, but always see these two foci as linear rather than reflexive. This view should contextualize the ideas of value hypocrisy and policy sincerity by distinguishing the common focus on an instrument’s effectiveness from a renewed focus on an instrument’s sincerity. Section II introduces the food movement as a case study, and seeks to approximately define the movement’s policy goals and motivating values in order to assess how these values fit with different policy instruments. Section III looks closely at the common law, with a special emphasis on tort law as a policy tool. This section reviews theories of common law and the values that are part of common law jurisprudence. Section IV first explores the existing literature on the role of common law to advance food policy, concluding that while the little analysis that exists does support the use of common law, it uses an instrumentalist approach. Far from condemning this approach, Section IV affirms the current literature and the instrumental importance of common law as a food-policy tool—and enhances this conclusion—arguing that by fitting values between tool and goals, the common law can offer significant and additional instrumental and non-instrumental benefits to the food movement.
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 E.g., Thomas Kaplan & Robert Pear, Vote Delayed as G.O.P Struggles to Marshal Support for Health Care Bill, N.Y. Times (June 27, 2017), http://www.nytimes.com/2017/06/27/us/politics/republicans-struggle-to-marshal-votes-for-health-care-bill.html (noting the “Republicans’ seven-year effort to dismantle” the Affordable Care Act.).
 E.g., Aaron Blake, 20 GOP Criticisms of Obamacare’s Secrecy that Now Look Eerily Hypocritical, Wash. Post (June 20, 2017), https://www.washingtonpost.com/news/the-fix/wp/2017/06/20/20-gop-criticisms-of-obamacares-secrecy-that-now-look-eerily-hypocritical/?utm_term=.74088af0b405 (suggesting that Democrats secretly passed the Affordable Care Act).
 E.g., John W. Thibaut & Laurens Walker, Procedural Justice: A Psychological Analysis 102–03 (1975) [hereinafter Thibaut & Walker, Procedural Justice] (appraising the procedural system of justice); John Thibaut & Laurens Walker, A Theory of Procedure, 66 Cal. L. Rev. 541 (1978) [hereinafter Thibaut & Walker, A Theory] (suggesting that procedure is an avenue for resolving legal disputes); Tom R. Tyler, et al., Social Justice in a Diverse Society (1998) (pointing out literature on procedural fairness).
 Jillian Jordan, et al., Why Do We Hate Hypocrites? Evidence for a Theory of False Signaling 1 (Association for Psychological Science, 2017) [hereinafter Jordan, False Signaling].
 Id. at 1-2.
 Id. at 2.
 Anthony Weston, Beyond Intrinsic Value: Pragmatism in Environmental Ethics, 7 Envtl. Ethics 321, 323, 337 (1985).
 E.g., Eric Pooley, 15 Years of “Ways That Work” for People and Planet, Envtl. Def. Fund (Sept. 12, 2014), https://www.edf.org/blog/2014/09/12/15-years-ways-work-people-and-planet (providing examples of economic mechanisms to protect the environment).
 E.g., Kirk Junker, Ethical Emissions Trading and the Law, 13 U. Balt. J. Envtl. L. 149, 170 (2006) (discussing how market price may motivate emission reduction more than environmental reasons).
 Jordan, False Signaling, supra note 7.
 Values, Oxford English Dictionary (2d ed. 1989).
 Stephanie Clifford, Wal-Mart to Buy More Local Produce, N.Y. TIMES (Oct. 14, 2010),
 USDA Reports Record Growth in U.S. Organic Products, USDA (April 4, 2016), https://www.usda.gov/media/press-releases/2016/04/04/usda-reports-record-growth-us-organic-producers.
 Susan A. Schneider, Food, Farming, and Sustainability: Readings in Agricultural Law 662–64 (2d ed. 2016).
 See id. at 662 (emphasizing the uniform standards that the Organic Foods Production Act of 1990 sought to impose on all producers).