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t is tempting to say that in 2017 there is a unique problem of hypocrisy in politics, where words and behaviors are so often in opposition. In fact, hypocrisy is nothing new. A robust legal and psychological literature on the importance of procedural justice demonstrates a longstanding concern with developing more just governing processes. One of the important features of this scholarship is that it does not focus only on the consequences of policymaking, in which behaviors, but not words, are relevant. Instead, it respects the intrinsic importance of fair process, lending credence not only to votes but also to rhetoric. This scholarship, in other words, makes room for considerations of hypocrisy in policymaking.

New psychological research 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. This recognition is equally important in policy analysis.

This Article argues, for the first time, that the concept of hypocrisy is a useful analytical tool in policymaking and policy advocacy. Using a new framework of “value hypocrisy”—in which the public values that motivate a specific policy goal are not embodied in the policy instrument—and “policy sincerity”—in which a policy instrument does actualize motivating values—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, but 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.

Given the unique importance of food to both our bare survival and frivolous indulgences, this Article introduces hypocrisy as an analytical tool for instrument choice by using a food law and policy case study. This Article’s second point 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 decisionmaking, and progressive traditionalism, that motivate the food movement. The common law is individualistic and collective, public and private, just like eating.