Private Regulation and Foreign Conduct

The Article proceeds as follows. Part II examines regulatory enforcement generally, viewing the problem through the lens of two basic decisions: whether to target behaviors or outcomes, and whether to rely on direct enforcement or third-party monitoring. Part III turns to imported-food safety. It begins with an overview of current U.S. policy and then examines the effects of foreign production on the choice between ex post and ex ante regulatory strategies. Because of the limits of tort law for regulating multinational activities, ex ante regulation may be more important for imports than for domestically produced products. Part IV focuses on options for ex ante regulation of imported food. It sets out three regulatory strategies and three principal-agent problems that should influence the choice between them. Direct extraterritorial regulation, delegation to a private entity, and delegation to a foreign government agency are the three regulatory strategies included in current reform proposals. The three key principal-agent problems are the regulatory license problem, interest group capture, and the reality of bribery and threats in many food-exporting countries. Part V examines these three principal-agent problems in more detail, demonstrating that they play out in different and somewhat unexpected ways under each of the basic regulatory strategies. Part VI touches briefly on the role of international trade law. Finally, Part VII concludes with some observations on the relationship between funding decisions, delegated regulation, and the scope of government