Fudging the nudge: Information disclosure and restaurant grading

Yale Law Journal

Volumn 122, Issue 3, 2012, Pages 574-688

  Ho, Daniel E ^a  

^a STANFORD LAW SCHOOL   (United States)

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[No Author keywords available]

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EID: 84871637729     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (478)

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6. see also Publicly Available Consumer Product Safety Information Database, U.S. Consumer Product Safety Commission, http://www.saferproducts.gov (last visited Jan. 30, 2012) (providing a publicly searchable database where submitters can report a harm or risk of harm related to the use of a consumer product or substance).
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10. See Emergency Planning and Community Right-To-Know Act of 1986, 42 U.S.C. §§ 11001-11050 (2006) (requiring disclosure of chemical hazards to communities); Standard for Demolition and Renovation, 40 C.F.R. § 61.145 (2011) (mandating disclosure of asbestosreleasing demolition and renovation activity)
11. Emergency Planning and Community Right-To-Know Act of 1986, 42 U.S.C. § 156.10 (mandating disclosure of pesticide ingredients); Mandatory Reporting of Greenhouse Gases, 74 Fed. Reg. 56,260 (proposed Oct. 30, 2009) (to be codified in scattered parts of 40 C.F.R.) (requiring reporting of greenhouse gas emissions).
12. See 21 C.F.R. § 101.9 (2011) (regarding the disclosure of nutritional information for food products)
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14. See James T. Hamilton, Regulation Through Revelation: The Origin, Politics, and Impacts of the Toxics Release Inventory Program (2005)
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23. Shameek Konar & Mark A. Cohen, Information as Regulation: The Effect of Community Right To Know Laws on Toxic Emissions, 32 J. Envtl. Econ. & Mgmt. 109 (1997)
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25. Paul G. Mahoney, Mandatory Disclosure as a Solution to Agency Problems, 62 U. Chi. L. Rev. 1047 (1995)
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27. Florencia Marotta-Wurgler, Will Increased Disclosure Help? Evaluating the Recommendations of the ALI's "Principles of the Law of Software Contracts, " 78 U. Chi. L. Rev. 165 (2011)
28. Alan D. Mathios, The Impact of Mandatory Disclosure Laws on Product Choices: An Analysis of the Salad Dressing Market, 43 J.L. & Econ. 651 (2000)
29. A. Mitchell Polinsky & Steven Shavell, Mandatory Versus Voluntary Disclosure of Product Risks, 26 J.L. Econ. & Org. 1 (2010)
30. William M. Sage, Regulating Through Information: Disclosure Laws and American Health Care, 99 Colum. L. Rev. 1701 (1999)
31. Daniel J. Solove, The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosure, 53 Duke L.J. 967 (2003)
32. Note, Disclosure as a Legislative Device, 76 Harv. L. Rev. 1273 (1963).
33. See, e.g., James R. Bettman et al., Cognitive Considerations in Designing Effective Labels for Presenting Risk Information, 5 J. Pub. Pol'y & Marketing 1, 2-12 (1986).
34. See, e.g., Eugene G. Chewning, Jr. & Adrian M. Harrell, The Effect of Information Load on Decision Makers' Cue Utilization Levels and Decision Quality in a Financial Distress Decision Task, 15 Acct. Org. & Soc'y 527, 539-40 (1990)
35. Kevin Lane Keller & Richard Staelin, Effects of Quality and Quantity of Information on Decision Effectiveness, 14 J. Consumer Res. 200, 211-12 (1987).
36. The seminal synthesis is Archon Fung, Mary Graham & David Weil, Full Disclosure: The Perils and Promise of Transparency (2007).
37. See also Robert Baldwin et al., Understanding Regulation: Theory, Strategy, and Practice 339 (2d ed. 2012) ("[O]ne of the key debates in recent years has been how 'targeted transparency' can be used to influence (or 'nudge') consumer behaviour in order to rectify the limitations of more conventional and political-bureaucratic understandings of accountability. ")
38. Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (2008) (proposing a framework for choice architecture to "nudge" parties toward more effective decisionmaking)
39. Omri Ben-Shahar & Carl E. Schneider, The Failure of Mandated Disclosure, 159 U. Pa. L. Rev. 647, 652, 743 (2011) (arguing that "mandated disclosure generally fails to achieve its goals, " but that "brief, simple, easy disclosures" and ratings provide a promising regulatory alternative)
40. Colin Camerer et al., Regulation for Conservatives: Behavioral Economics and the Case for "Asymmetric Paternalism, " 151 U. Pa. L. Rev. 1211, 1221, 1230-32 (2003) (noting that "[t]he goal of asymmetric paternalism is to help boundedly rational consumers make better decisions" and discussing disclosure regulations that further that goal)
41. David M. Grether, Alan Schwartz & Louis L. Wilde, The Irrelevance of Information Overload: An Analysis of Search and Disclosure, 59 S. Cal. L. Rev. 277, 301 (1986) (noting that certain forms of satisficing "can be ameliorated by disclosure requirements that reduce the costs to consumers of inspecting product attributes")
42. Samuel Issacharoff, Disclosure, Agents, and Consumer Protection, 167 J. Institutional & Theoretical Econ. 56, 63 (2001) ("Of critical importance is not only the consumer's ability to obtain relevant information through disclosure, but that the information be of a sort that will prove usable within real-world time and motivation constraints. ")
43. Christine Jolls, Cass R. Sunstein & Richard Thaler, A Behavioral Approach to Law and Economics, 50 Stan. L. Rev. 1471, 1533-34 (1998) (discussing how conventional prescriptions to "provide more information" fall short when considering behavioral insights)
44. Christine Jolls & Cass R. Sunstein, Debiasing Through Law, 35 J. Legal Stud. 199, 207-08 (2006) (analyzing legal strategies for reducing the effects of bounded rationality and discussing intermediate options to greater information disclosure and outright bans)
45. Mario F. Teisl & Brian Roe, The Economics of Labeling: An Overview of Issues for Health and Environmental Disclosure, 27 Agric. & Resource Econ. Rev. 140, 144-47 (1998) (providing a theoretical framework for the welfare analysis of information labeling that poses a tradeoff between information cost and accuracy)
46. David Weil et al., The Effectiveness of Regulatory Disclosure Policies, 25 J. Pol'y Analysis & Mgmt. 155 (2006) (reviewing principles of effective disclosure across regulatory areas).
47. Christine Jolls, Cass R. Sunstein & Richard Thaler, A Behavioral Approach to Law and Economics, 50 Stan. L. Rev. 11-13 (1998) (arguing, for example, that designers should give choosers reminders and try to minimize costs for those who do not want to choose).
48. See Age Determination Guidelines: Relating Children's Ages to Toy Characteristics and Play Behavior, Consumer Products Safety Commission (2002), http://www.cpsc.gov/businfo /adg.pdf.
49. See Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act, Pub. L. No. 106-414, 114 Stat. 1800 (2000) (codified as amended in scattered sections of 49 U.S.C. (2006).
50. See Rebecca Smith, Smart Meter, Dumb Idea?, Wall St. J., Apr. 27, 2009, http://online.wsj.com/article/SB124050416142448555.html
51. Clive Thompson, Clive Thompson Thinks: Desktop Orb Could Reform Energy Hogs, Wired Mag., July 24, 2007, http://www.wired.com/techbiz/people/magazine/15-08/st_thompson; News Release, Cal. Pub. Util. Comm'n, PUC Approves Smartmeters for PG&E Customers (July 20, 2006), http://docs.cpuc.ca.gov/PublishedDocs/Word_PDF/News_Release/58233.pdf.
52. See Michael A. Livermore & Richard L. Revesz, Address, Retaking Rationality Two Years Later, 48 Hous. L. Rev. 1, 19-23 (2011) (discussing the Obama Administration's refinement of cost-benefit analysis to incorporate insights from behavioral economics)
53. Michael P. Vandenbergh, Amanda R. Carrico & Lisa Schultz Bressman, Regulation in the Behavioral Era, 95 Minn. L. Rev. 715, 717 (2011) ("Regulation has entered the behavioral era. ")
54. cf. Charles F. Sabel & William H. Simon, Minimalism and Experimentalism in the Administrative State, 100 Geo. L.J. 53 (2011) (critiquing minimalist theories of regulatory policy).
55. Jeff Sommer, When Humans Need a Nudge Toward Rationality, N.Y. Times, Feb. 7, 2009, http://www.nytimes.com/2009/02/08/business/08nudge.html.
56. Exec. Order No. 13,563, 76 Fed. Reg. 3,821 § 4 (2011).
57. Memorandum from Cass R. Sunstein, Adm'r, Office of Info. & Regulatory Affairs, for the Heads of Exec. Dep'ts & Agencies, Disclosure and Simplification as Regulatory Tools 12 (June 18, 2010).
58. Memorandum from Cass R. Sunstein, Adm'r, Office of Info. & Regulatory Affairs, for the Heads of Exec. Dep'ts & Agencies, Informing Consumers Through Smart Disclosure 2 (Sept. 8, 2011).
59. Memorandum from Aneesh Chopra, U.S. Chief Tech. Officer & Assoc. Dir. for Tech., Office of Sci. & Tech. Policy, for the Nat'l Sci. & Tech. Council Comm. on Tech., Winning the Future Through Open Innovation-A Progress Report on Our Open Government Initiative 2 (June 8, 2011).
60. See Interactive Data for Mutual Fund Risk/Return Summary, 74 Fed. Reg. 7,748 (Feb. 19, 2009) (to be codified at 17 C.F.R. pts. 230, 232, 239 & 274).
61. See Revisions and Additions to Motor Vehicle Fuel Economy Label, 75 Fed. Reg. 58,078, 58,082 (Sept. 23, 2010) (proposing letter grading); 76 Fed. Reg. 39,478, 39, 488-89 (July 6, 2011) (to be codified at 40 C.F.R. pts. 85, 86 & 600, 49 C.F.R. pt. 575) (choosing alternative label)
62. Fuel Economy Label: Expert Panel Report, U.S. Envtl. Protection Agency (Aug. 2010), http://www.epa.gov/fueleconomy/label/420r10908.pdf (making design recommendations for letter-grade labels).
63. See Labeling and Effectiveness Testing; Sunscreen Drug Products for Over-the-Counter Human Use, 76 Fed. Reg. 35,620, 35,624 (June 17, 2011) (to be codified at 21 C.F.R. pts. 201 & 310).
64. See Press Release, U.S. Dep't of Hous. & Urban Dev., HUD Launches Development of a National Housing and Transportation Affordability Index: New Tool Will Provide Homebuyers with a More Accurate Estimate of Living Costs (Aug. 30, 2011), http://portal.hud.gov/hudportal/HUD?src=/press/press_releases_media_advisories/2011/ HUDNo.11-180.
65. See Know Before You Owe, Consumer Fin. Protection Bureau, http:// www.consumerfinance.gov/knowbeforeyouowe (last visited Jan. 30, 2012).
66. See, e.g., Ian Ayres & Jennifer Gerarda Brown, Straightforward: How To Mobilize Heterosexual Support for Gay Rights 79-94 (2005) (proposing a "Fair Employment Mark" to certify that an employer abides by a set of employment policies)
67. Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How To Fix It 135 (2009) (proposing a "Democracy Index" that would create "better information shortcuts for voters, policymakers, and election administrators" to improve the U.S. election system)
68. Lawrence Lessig, Republic, Lost: How Money Corrupts Congress-and a Plan To Stop It 251-63 & n.1 (2011) (discussing how campaign finance, by failing tenets of targeted transparency, will not fix "dependence corruption" in U.S. politics)
69. Omri Ben-Shahar, The Myth of the 'Opportunity To Read' in Contract Law, 5 Eur. Rev. Cont. L. 1, 21-26 (2009) (proposing "a simple, intuitive format" for rating and labeling of contracts)
70. Nora Freeman Engstrom, Sunlight and Settlement Mills, 86 N.Y.U. L. Rev. 805, 865-71 (2011) (proposing a disclosure regime for settlement mills that operate in the shadow of tort law and discussing methods to facilitate client use)
71. Cynthia Estlund, Just the Facts: The Case for Workplace Transparency, 63 Stan. L. Rev. 351, 376-79 (2011) (proposing a mandatory disclosure regime for the workplace and discussing the "ingenious" conception of targeted transparency)
72. Jeff Leslie & Cass R. Sunstein, Animal Rights Without Controversy, 70 Law & Contemp. Probs. 117, 130-36 (2007) (discussing proposals for simplified animal welfare products labels)
73. Kristin Madison, The Law and Policy of Health Care Quality Reporting, 31 Campbell L. Rev. 215, 251-52 (2009) (discussing efforts to improve health care quality reporting)
74. Lloyd Hitoshi Mayer, Disclosures About Disclosure, 44 Ind. L. Rev. 255, 257-60, 280-84 (2010) (discussing flawed attempts of campaign finance disclosures and proposing to change the level of disclosures)
75. Gideon Parchomovsky & Philip J. Weiser, Beyond Fair Use, 96 Cornell L. Rev. 91, 96, 126 (2010) (proposing to mandate that content owners provide clear and explicit notification of user privileges)
76. Richard B. Stewart, A New Generation of Environmental Regulation?, 29 Cap. U. L. Rev. 21, 134-43 (2001) (discussing informational strategies for environmental regulation)
77. Andrew Bruck & Andrew Canter, Note, Supply, Demand, and the Changing Economics of Large Law Firms, 60 Stan. L. Rev. 2087, 2118-26 (2008) (describing data-driven efforts based on targeted transparency to provide rankings of law firms based on hours, diversity, and attrition).
78. Archon Fung, Mary Graham & David Weil, Full Disclosure: The Perils and Promise of Transparency (2007), at 82-83.
79. Archon Fung, Mary Graham & David Weil, Full Disclosure: The Perils and Promise of Transparency (2007), at 50-83.
80. Archon Fung, Mary Graham & David Weil, Full Disclosure: The Perils and Promise of Transparency (2007), at 75.
81. Omri Ben-Shahar & Carl E. Schneider, The Failure of Mandated Disclosure, 159 U. Pa. L. Rev. 743-48 (2011).
82. See, e.g., Org. for Econ. Co-operation & Dev., Consumer Policy Toolkit 87 (2010)
83. Christine Jolls, Cass R. Sunstein & Richard Thaler, A Behavioral Approach to Law and Economics, 50 Stan. L. Rev. 190 (1998)
84. Paula J. Dalley, The Use and Misuse of Disclosure as a Regulatory System, 34 Fla. St. U. L. Rev. 1089, 1119 (2007)
85. Cynthia Estlund, Just the Facts: The Case for Workplace Transparency, 63 Stan. L. Rev. 351, 394-95 (2011)
86. Samuel Issacharoff, Disclosure, Agents, and Consumer Protection, 167 J. Institutional & Theoretical Econ. 60 (2001)
87. Frederick Schauer, Transparency in Three Dimensions, 2011 U. Ill. L. Rev. 1339, 1348
88. Lior Jacob Strahilevitz, Reputation Nation: Law in an Era of Ubiquitous Personal Information, 102 Nw. U. L. Rev. 1667, 1711 (2008)
89. Fuel Economy Label: Expert Panel Report, U.S. Envtl. Protection Agency (Aug. 2010), http://www.epa.gov/fueleconomy/label/420r10908.pdf at 16.
90. See Ginger Zhe Jin & Phillip Leslie, The Effect of Information on Product Quality: Evidence from Restaurant Hygiene Grade Cards, 118 Q.J. Econ. 409 (2003).
91. David Seifman, Mike & Health Dept. in Food-Cart Feud, N.Y. Post, Aug. 2, 2011, http://www.nypost.com/p/news/local/mike_health_dept_in_food_cart_feud_yCF8Sl8s5u4J QTFA1wMBnJ.
92. Press Release, Office of the Mayor, Mayor Bloomberg, Deputy Mayor Gibbs, Health Commissioner Farley Announce that One in Three Restaurants in New York City Automatically Saved Money by Earning and Keeping 'A's-Over $3 Million in Fines Waived over Last Six Months (Aug. 1, 2011), http://www.nyc.gov/html/om/html/2011b/pr278-11.html.
93. Kai Falkenberg, The Most Effective Regulatory Disclosure Ever: So Easy Even Toddlers Understand It, Forbes, May 6, 2011, http://www.forbes.com/sites/kaifalkenberg/2011/05/06 /the-most-effective-regulatory-disclosure-ever-so-easy-even-toddlers-understand-it
94. Tom Ferrick, Jr., How New York Gets Food Inspections Right, Metropolis, Nov. 13, 2010, http://www.phlmetropolis.com/2010/11/how-new-york-gets-inspections-right.php ("If you want to see restaurant inspections done right, travel to New York City.")
95. Elisabeth Rosenthal, I Disclose... Nothing, N.Y. Times, Jan. 21, 2012, http://www.nytimes.com/2012 /01/22/sunday-review/hard-truths-about-disclosure.html (noting that restaurant grading is considered a helpful form of disclosure, while most disclosure policies may not work).
96. See Elizabeth Lee, Restaurants Face New Rating Code, Atlanta J.-Const., Dec. 1, 2007, at J1.
97. See Jenna Carlesso, Hartford Restaurants To Get Health Grades, Hartford Courant, Dec. 31, 2011, http://articles.courant.com/2011-12-31/business/hc-hartford-restaurant-scoring-1228-20111223_1_inspection-restaurants-food-storage-and-preparation.
98. See Gideon Gil, New Rating System Set for Jefferson Restaurants, Courier-J. (Louisville, Ky.), Dec. 3, 2002, at B1.
99. See Mississippi State Department of Health Announces New Restaurant Inspection Rating System, Gulf Coast News (Miss.), Sept. 10, 2007, http://www.gulfcoastnews.com/gcnarchive/2007 /gcnnewsnewrestauranthealthratings091007.htm.
100. See Yvonne Blackwood, Laurels for Restaurant Inspection System, Toronto Star, Jan. 11, 2001, at A27.
101. See Steve Barnes, New Albany Restaurant-Inspection Grades: Excellent, Good, Fair, Times Union: Table Hopping (Albany, N.Y.) (Jan. 12, 2012, 2:43 PM), http://blog.timesunion.com/tablehopping/28190/new-albany-restaurant-inspection-grades-excellent-good-fair.
102. See Kaye Spector, Grading System for Cuyahoga County Restaurants Under Discussion, Plain Dealer (Cleveland, Ohio), Feb. 7, 2010, http://www.cleveland.com/healthfit/index.ssf/2010 /02/grading_system_for_cuyahoga_co.html.
103. See James Burger, County Restaurants To Get Health Grades, Bakersfield Californian, Oct. 18, 2006, http://www.bakersfieldcalifornian.com/local/x1393743116/County-restaurants-to-get-health-grades.
104. See Lauren Gilger, Maricopa County's Restaurant Inspection Process Goes from Being Easy on Restaurants-to Being Even Easier, Phx. New Times: Chow Bella (Oct. 17, 2011, 10:16 AM), http://blogs.phoenixnewtimes.com/bella/2011/10/maricopa_county_implements_vol.php.
105. See Imran Ghori, County Eateries To Get Grades, Press-Enterprise, June 16, 2004, at B3.
106. See Miami-Dade Cnty. Bd. of Cnty. Comm'rs, Res. No. R-195-07 (Fla. 2007), http://www.miamidade.gov/govaction/legistarfiles/MinMatters/Y2007/070252min.pdf.
107. See Jeff Klein, Consumer Prot. Comm., Restaurants That Are Enough To Make You Sick: An Analysis of Unsanitary Conditions at New York City and Westchester County Restaurants, N.Y. St. Senate (Aug. 22, 2005), http://www.nysenate.gov/files/nyss-migrate/NYC-and-Westchester-County-Restaurants-Enough-to-make-You.pdf.
108. See Jamie R. Liu, Mary Cheh Reintroduces Restaurant Hygiene Letter Grade Act, DCist (Jan. 19, 2011, 11:30 AM), http://dcist.com/2011/01/cheh_reconsiders_letter_grades_for.php.
109. See Dan McKay, City Chews on Grades for Eateries, Albuquerque J., Oct. 15, 2008, http://www.abqjournal.com/news/metro/15946252343newsmetro10-15-08.htm. As described below, Albuquerque was already using one form of grading, but the city proposed to replace it with letter grades.
110. See Carolyn Walkup, Chicago Pols Propose Public Health-Inspection Grading System, Nation's Restaurant News, Nov. 30, 1998, at 1.
111. See Robert Seltzer, Proposed Eatery Rating System Could Be Easy To Stomach, El Paso Times, Mar. 11, 2003, at 1B.
112. See Michael Gresham, Council Opts To Educate Not Regulate, Kaufman Herald, Feb. 26, 2009, http://www.kaufmanherald.com/news/article_7fc3db96-7b7b-543b-a841-228084767ee5.html.
113. See Paul Bass & Jacob Cohn, What's That Report Card in the Window?, New Haven Indep., June 24, 2011, http://www.newhavenindependent.org/index.php/archives/entry/whats_that _report_card_in_the_window.
114. See Gary Scott, Pasadena Council Rejects Letter Grades; Eateries To Post Health Violations, Pasadena Star-News, Oct. 21, 2003, at A-1.
115. See Patricia Sabatini, A-B-C Grading Stalled for Restaurants in Allegheny County, Pittsburgh Post-Gazette, Mar. 30, 2012, http://www.post-gazette.com/stories/sectionfront/life/a-b-c-grading-stalled-for-restaurants-in-allegheny-county-309340.
116. See Suzanne Herel, Restaurant Health Ratings Win Approval, S.F. Chron., May 12, 2004, http://www.sfgate.com/health/article/San-Francisco-Restaurant-health-ratings-win-2780216.php.
117. See Meeting Notice: Community Meeting for a Proposed Food Facility Grading System, Alameda County Health Care Services (Jan. 12, 2012), http://www.acgov.org /aceh/documents/GradingProjectNotice.pdf.
118. See Julie French, Voters Reject Restaurant Grading System, Ashland Daily Tidings (Colo.), Nov. 6, 2008, http://www.dailytidings.com/apps/pbcs.dll/article?AID=/20081106/NEWS02 /811060330.
119. See Cory Frolik, Restaurant Grading Proposal Gets an "F, " Sandusky Reg. (Ohio), May 24, 2010, http://www.sanduskyregister.com/article/21802.
120. See Lori Kersey, Carper Wants Restaurants' Health Reports 'Conspicuous,' Charleston Gazette, Jan. 2, 2012, http://wvgazette.com/news/201201020082.
121. See Michelle Guido, Eatery Grading Stirs Debate, San Jose Mercury News, Sept. 19, 2000, at 1B.
122. See Ventura Cnty. Grand Jury 2008-2009, Is Your Favorite Restaurant Clean?, County of Ventura (June 23, 2009), http://portal.countyofventura.org/portal/page/portal/Grand _Jury/Reports/TAB4579372/13IsYourFavoriteRestaurantClean.pdf.
123. Sarah Klein & Caroline Smith DeWaal, Dirty Dining: Have Reservations? You Will Now, Center for Sci. in the Pub. Int. 35 (June 2008), http://www.cspinet.org/dirtydining /DirtyDiningReport.pdf.
124. Editorial, Food for Thought, N.Y. Daily News, Mar. 11, 2012, http://articles.nydailynews.com/2012-03-11/news/31144196_1_restaurant-grades-letter-grades-restaurant-inspection-process.
125. Michael Howard Saul, Quinn Critical of Restaurant Grade System, Wall St. J., Dec. 17, 2011, http://online.wsj.com/article/SB10001424052970204553904577103023839163292.html
126. Heard Around Town, City & State, Mar. 7, 2012, http://www.cityandstateny.com/heard-town-march-7-2012.
127. Glenn Collins, Restaurateurs Voice Anger over Health Inspections, N.Y. Times: City Room (Mar. 7, 2012, 4:19 PM), http://cityroom.blogs.nytimes.com/2012/03/07/restaurateurs-voice-anger-over-health-inspections
128. see Marc Beja, City Grilled over 'Inconsistencies' in Restaurant Grading System, AM N.Y. (Mar. 7, 2012), http://www.amny.com/urbanite-1.812039/city-grilled-over-inconsistencies-in-restaurant-grading-system-1.3586988; Press Release, N.Y.C. Council, Majority of Restaurant Inspection Survey Participants Received A Grades and Still Rated the System Poorly (Mar. 7, 2012), http://council.nyc.gov /html/releases/pdfs/restaurantrelease.pdf (reporting results from a survey asking, among other questions, "how would you rate the letter grading system?"). The author of this Article testified as an independent expert at this hearing. See Empirical Facts About Restaurant Grading, Hearing Before the N.Y.C. Council Comm. on Governmental Operations, Comm. on Health, Comm. on Oversight & Investigations, & Comm. on Small Bus. (Mar. 7, 2012) (statement of Daniel E. Ho) (on file with author)
129. see also Daniel E. Ho, Op-Ed., Improve Restaurant Report Cards, N.Y. Times, Mar. 7, 2012, http://www.nytimes.com/2012/03/07 /opinion/the-restaurant-grade-system-is-broken.html.
130. Josh Ozersky, Giving an F to New York's Restaurant Grading System, Time, July 20, 2010, http://www.time.com/time/nation/article/0,8599,2005191,00.html.
131. See Sumathi Reddy & Hilke Schellmann, Many Eatery High Marks Are Close Call, Wall St. J., July 28, 2011, http://online.wsj.com/article/SB10001424053111904888304576472323664531488.html
132. Brian J. McCabe, Grading New York Restaurants: What's in an 'A'?, N.Y. Times: FiveThirtyEight (Jan. 19, 2011, 8:33 PM), http://fivethirtyeight.blogs.nytimes.com/2011 /01/19/grading-new-york-restaurants-whats-in-an-a ("Closer inspection of the underlying data reveals a suspicious distribution of restaurants near the cut-off point between an A and a B.").
133. See Archon Fung, Mary Graham & David Weil, Full Disclosure: The Perils and Promise of Transparency (2007), at 78, 82-83, 193-94. (relying exclusively on studies of Los Angeles in assessing the efficacy of restaurant grading).
134. Five of the jurisdictions grade: San Diego, New York, North Carolina, South Carolina, and Louisville. Three of these jurisdictions score, but do not grade: El Paso, Austin, and Seattle. Two jurisdictions do not score or grade: Chicago and Florida. Nongrading jurisdictions provide a comparison group, which confirms the effects of grading.
135. See Appendix D.
136. Nat'l Recovery Admin., No. 282, Code of Fair Competition for the Restaurant Industry (Feb. 16, 1934).
137. Nat'l Recovery Admin., No. 282, Code of Fair Competition for the Restaurant Industry (Feb. 16, 1934). at 524.
138. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (invalidating the National Industrial Recovery Act and the associated industrial codes).
139. U.S. Pub. Health Serv., Ordinance and Code Regulating Eating and Drinking Establishments (1940) [hereinafter 1940 Code]. Grading also appeared in the model food code in 1938, but this version was "tentative" because it had not been reviewed by the Sanitation Advisory Board. See U.S. Pub. Health Serv., Ordinance and Code Regulating Eating and Drinking Establishments 2 (1938). These model codes are advisory and not codified by the federal government.
140. See Richard H. Boehnke, International Survey on Public Posting of Restaurant Inspection Reports, and/or Grade Card Posting Schemes Based upon Health Inspections 4 (2000) ("A decade later, in 1934, the same United States Public Health Service introduced the first model food code. It was based directly upon the existing 1924 Milk Code complete with the milk bottle letter grade system. ").
141. The model code included versions for "grading" and "non-grading" jurisdictions. See 1940 Code, U.S. Pub. Health Serv., Ordinance and Code Regulating Eating and Drinking Establishments (1940) [hereinafter 1940 Code]. Grading also appeared in the model food code in 1938, but this version was "tentative" because it had not been reviewed by the Sanitation Advisory Board. See U.S. Pub. Health Serv., Ordinance and Code Regulating Eating and Drinking Establishments 2 (1938). These model codes are advisory and not codified by the federal government., at 5 n.1.
142. U.S. Pub. Health Serv., Ordinance and Code Regulating Eating and Drinking Establishments (1940) [hereinafter 1940 Code]. Grading also appeared in the model food code in 1938, but this version was "tentative" because it had not been reviewed by the Sanitation Advisory Board. See U.S. Pub. Health Serv., Ordinance and Code Regulating Eating and Drinking Establishments 2 (1938). These model codes are advisory and not codified by the federal government. at 17-31.
143. U.S. Pub. Health Serv., Ordinance and Code Regulating Eating and Drinking Establishments (1940) [hereinafter 1940 Code]. Grading also appeared in the model food code in 1938, but this version was "tentative" because it had not been reviewed by the Sanitation Advisory Board. See U.S. Pub. Health Serv., Ordinance and Code Regulating Eating and Drinking Establishments 2 (1938). These model codes are advisory and not codified by the federal government. at 31-32.
144. U.S. Pub. Health Serv., Ordinance and Code Regulating Eating and Drinking Establishments (1940) [hereinafter 1940 Code]. Grading also appeared in the model food code in 1938, but this version was "tentative" because it had not been reviewed by the Sanitation Advisory Board. See U.S. Pub. Health Serv., Ordinance and Code Regulating Eating and Drinking Establishments 2 (1938). These model codes are advisory and not codified by the federal government. at 32.
145. U.S. Pub. Health Serv., Ordinance and Code Regulating Eating and Drinking Establishments (1940) [hereinafter 1940 Code]. Grading also appeared in the model food code in 1938, but this version was "tentative" because it had not been reviewed by the Sanitation Advisory Board. See U.S. Pub. Health Serv., Ordinance and Code Regulating Eating and Drinking Establishments 2 (1938). These model codes are advisory and not codified by the federal government. at 14-15.
146. See David M. Kennedy, Freedom from Fear: The American People in Depression and War, 1929-1945, at 183-84 (2001) (describing the Blue Eagle).
147. A.W. Fuchs, The U.S. Public Health Service Restaurant Sanitation Program, 32 Am. J. Pub. Health 848, 850 (1942) (paraphrasing language from the model code).
148. See Maurice E. Trout, Cleaning Up the Restaurants, 38 Nat'l Mun. Rev. 335, 335 (1949).
149. See Council To Consider Restaurant Clean-Up, Atlanta Const., Sept. 16, 1945, at 3A; Grade "C" Eating Places Have 30 Days To Improve, Atlanta Daily World, Oct. 29, 1946, at 6.
150. See Brooke Williams & Agustín Armendariz, A Recipe for Trouble: Coming Clean on Restaurant Grades, San Diego Union-Trib., July 22, 2007, http://www.signonsandiego.com /uniontrib/20070722/news_lz1n22recipe.html.
151. See Pittsburgh Forcing Cafes To Clean Up or Close Up, L.A. Times, Mar. 6, 1951, at B8.
152. Washington, D.C. proposed grading in 1943. See Anne Hagner, Bill Tightens Restaurant Sanitary Code, Wash. Post, Sept. 15, 1943, at 10.
153. See Pittsburgh Forcing Cafes To Clean Up or Close Up L.A. Times, Mar. 6, 1951, at B8.
154. See Food Service Sanitation: Proposed Uniform Requirements for State and Local Regulatory Agencies, 39 Fed. Reg. 35,438 (Oct. 1, 1974), withdrawn by Food Service Sanitation: Withdrawal of Proposal and Termination of Rule Making Proceeding, 42 Fed. Reg. 15,428 (Mar. 22, 1977)
155. see also Clinton L. Rappole, Sanitation in the Food Service Operation: The Implications of the Proposed Sanitation Ordinance, 18 Cornell Hotel & Restaurant Admin. Q. 31 (1977) (describing proposed modifications to the food code).
156. U.S. Dep't of Health, Educ., & Welfare, Pub. Health Serv., Food Service Sanitation Manual 77 (1962) (proposing a model ordinance for the grading of food service establishments).
157. U.S. Dep't of Health, Educ., & Welfare, Pub. Health Serv., Food & Drug Admin., Food Service Sanitation Manual 74 (1976).
158. U.S. Dep't of Health, Educ., & Welfare, Pub. Health Serv., Food & Drug Admin., Food Service Sanitation Manual 88 (1976).
159. U.S. Dep't of Health, Educ., & Welfare, Pub. Health Serv., Food & Drug Admin., Food Service Sanitation Manual 75 (1976).
160. U.S. Dep't of Health, Educ., & Welfare, Pub. Health Serv., Food & Drug Admin., Food Service Sanitation Manual 74 (1976).
161. The name "General Accounting Office" was changed to the "Government Accountability Office" by the GAO Human Capital Reform Act of 2004, Pub. L. 108-271, § 8, 118 Stat. 811, 814 (codified as a note in 31 U.S.C. § 702 (2006).
162. Comptroller Gen. of the U.S., Gen. Accounting Office, MWD-76-42, Federal Support for Restaurant Sanitation Found Largely Ineffective 19 (1975).
163. Comptroller Gen. of the U.S., Gen. Accounting Office, MWD-76-42, Federal Support for Restaurant Sanitation Found Largely Ineffective 20 (1975).
164. See U.S. Dep't of Health & Human Servs., Pub. Health Serv., Food & Drug Admin., Food Code, annex 4, at 38-41 (1993) (recommending comparison of establishments by the number of critical violations, but noting that "there is no defined point at which a score translates into a significant health hazard" and doing away with the prior 100-point score).
165. U.S. Pub. Health Serv., Food & Drug Admin., Food Code 569 (2009).
166. See, e.g., Archon Fung, Mary Graham & David Weil, Full Disclosure: The Perils and Promise of Transparency (2007), at 20. ("In the last twenty years, targeted transparency policies have played a prominent role.... ").
167. See Richard H. Boehnke, International Survey on Public Posting of Restaurant Inspection Reports, and/or Grade Card Posting Schemes Based upon Health Inspections 4 (2000)
168. See Pittsburgh Forcing Cafes To Clean Up or Close Up L.A. Times, Mar. 6, 1951, at B8.
169. Administrative Law and Regulatory Policy: Problems, Text, and Cases 740 (Stephen G. Breyer et al. eds., 7th ed. 2011) (discussing Archon Fung, Mary Graham & David Weil, Full Disclosure: The Perils and Promise of Transparency (2007), at 20).
170. Administrative Law and Regulatory Policy: Problems, Text, and Cases 740 (Stephen G. Breyer et al. eds., 7th ed. 2011) (discussing Archon Fung, Mary Graham & David Weil, Full Disclosure: The Perils and Promise of Transparency (2007), at 20).
171. Chris J. Wiant, Scores, Grades, and Communicating About Food Safety, 61 J. Envtl. Health 37, 38 (1999).
172. Chris J. Wiant, Scores, Grades, and Communicating About Food Safety, 61 J. Envtl. Health 37 (1999).
173. Cf. Richard H. Boehnke, International Survey on Public Posting of Restaurant Inspection Reports, and/or Grade Card Posting Schemes Based upon Health Inspections 25 (2000) ("Given the extremely high turnover rate in the restaurant industry both in staff and in operators, a stated grade value posted at a restaurant at the time of the patrons' visits is much more likely to be dated history than currently accurate. ").
174. Owen H. Seiver & Thomas H. Hatfield, Grading Systems for Retail Food Facilities: A Risk-Based Analysis, 63 J. Envtl. Health 22, 24 (2000).
175. Bureau of Food Safety & Cmty. Sanitation, Self-Inspection Worksheet for Food Service Establishments, N.Y.C. Dep't of Health & Mental Hygiene 2 (Dec. 2010), http://www.nyc.gov /html/doh/downloads/pdf/rii/self-inspection-worksheet.pdf (Violation 5C).
176. Bureau of Food Safety & Cmty. Sanitation, Self-Inspection Worksheet for Food Service Establishments, N.Y.C. Dep't of Health & Mental Hygiene 2 (Dec. 2010), http://www.nyc.gov /html/doh/downloads/pdf/rii/self-inspection-worksheet.pdf at 2 (Violation 6A).
177. Food & Hous. Div., Retail Food Facility Operator's Guide, County of San Diego Dep't of Envtl. Health 6 (2007), http://www.sdcounty.ca.gov/deh/food/pdf /publications_opguide.pdf [hereinafter Retail Food Facility Operator's Guide] (Violation 13).
178. Thomas Peacock, Is It Safe To Eat Out? How Our Local Health Officials Inspect Restaurants To Assure Food Safety... or Do They? 59 (2002).
179. Timothy F. Jones et al., Restaurant Inspection Scores and Foodborne Disease, 10 Emerging Infectious Diseases 688, 688 (2004).
180. Owen H. Seiver & Thomas H. Hatfield, Grading Systems for Retail Food Facilities: A Risk-Based Analysis, 63 J. Envtl. Health 25 (2000).
181. Timothy F. Jones & Karen Grimm, Public Knowledge and Attitudes Regarding Public Health Inspections of Restaurants, 34 Am. J. Preventive Med. 510, 511-12 (2008).
182. Thomas H. Hatfield & Owen H. Seiver, Preference Reversals in Grading Systems for Retail Food Facilities, 63 J. Envtl. Health 19, 23 (2001).
183. Lauren Dundes & Sushama Rajapaksa, Scores and Grades: A Sampling of How College Students and Food Safety Professionals Interpret Restaurant Inspection Results, 64 J. Envtl. Health 14, 15-16 (2001).
184. Lauren Dundes & Sushama Rajapaksa, Scores and Grades: A Sampling of How College Students and Food Safety Professionals Interpret Restaurant Inspection Results, 64 J. Envtl. Health 16 (2001).
185. Henry Alford, Would the City Shut Down Your Kitchen?, N.Y. Times, Sept. 28, 2010, http://www.nytimes.com/2010/09/29/dining/29inspector.html.
186. U.S. Dep't of Health & Human Servs., Pub. Health Serv., Food & Drug Admin., Food Code, intro. (1993) ("[T]he new Code incorporates a framework for the application of Hazard Analysis Critical Control Point (HACCP) principles at retail.... ").
187. Richard H. Boehnke, International Survey on Public Posting of Restaurant Inspection Reports, and/or Grade Card Posting Schemes Based upon Health Inspections 24 (2000)
188. Food Res. Inst., Food Safety 1994, at 470 (1994)
189. Ctr. for Food Safety & Applied Nutrition, Managing Food Safety: A Regulator's Manual for Applying HACCP Principles to Risk-Based Retail and Food Service Inspections and Evaluating Voluntary Food Safety Management Systems, U.S. Dep't of Health & Hum. Services, Food & Drug Admin. 1-2 (Apr. 2006), http://www.fda.gov/downloads/Food/FoodSafety/RetailFood Protection/ManagingFoodSafetyHACCPPrinciples/Regulators/UCM078159.pdf.
190. See Ctr. for Food Safety & Applied Nutrition, U.S. Dep't of Health & Hum. Services, Food & Drug Admin. 1-2 (Apr. 2006), at 1-2.
191. Richard H. Boehnke, International Survey on Public Posting of Restaurant Inspection Reports, and/or Grade Card Posting Schemes Based upon Health Inspections 24 (2000),
192. Lora Arduser & Douglas Robert Brown, HACCP & Sanitation in Restaurants and Food Service Operations: A Practical Guide Based on the FDA Food Code 155 (2005) ("Traditional inspection is relatively resource-intensive and inefficient and is reactive rather than preventive compared to the HACCP approach.... ").
193. See Paul Frumkin, Health Departments Becoming Educators, Nation's Restaurant News, May 6, 2007, http://nrn.com/article/health-departments-becoming-educators ("In New York, a sense of 'us versus them' seems to pervade much of the restaurant community....").
194. See, e.g., Brian Emanuel, Grading a Food Establishment, 58 J. Envtl. Health 20 (1995) (proposing a new scoring system)
195. David Z. McSwane et al., In Search of the Ingredients of a Successful Retail Food Compliance Program, 50 J. Envtl. Health 341, 344 (1988) (discussing criticisms by sanitation officers of 1976 food code scoring)
196. Robert K. Stevenson, A Food Service Establishment Evaluation Program Procedure for the 1980's and 1990's, 50 J. Envtl. Health 25 (1987) (proposing scoring based on hazard potential).
197. David Z. McSwane et al., In Search of the Ingredients of a Successful Retail Food Compliance Program, 50 J. Envtl. Health 341, 344 (1988)
198. Kathleen Irwin et al., Results of Routine Restaurant Inspections Can Predict Outbreaks of Foodborne Illness: The Seattle-King County Experience, 79 Am. J. Pub. Health 586 (1989) (using case-control matching with a sample of eighty-four restaurants to show that poorer inspection scores were associated with a foodborne illness outbreak).
199. Richard H. Boehnke, International Survey on Public Posting of Restaurant Inspection Reports, and/or Grade Card Posting Schemes Based upon Health Inspections 2 (2000).
200. Richard H. Boehnke, International Survey on Public Posting of Restaurant Inspection Reports, and/or Grade Card Posting Schemes Based upon Health Inspections 11 (2000).
201. Richard H. Boehnke, International Survey on Public Posting of Restaurant Inspection Reports, and/or Grade Card Posting Schemes Based upon Health Inspections 26 (2000).
202. Richard H. Boehnke, International Survey on Public Posting of Restaurant Inspection Reports, and/or Grade Card Posting Schemes Based upon Health Inspections 12 (2000).
203. See Howard Kurtz, 28 New York City Restaurant Inspectors Accused of Extortion, Wash. Post, Mar. 25, 1988, at A3.
204. Health Inspection Bribe Report Prompts Hotline, L.A. Times, Nov. 11, 1998, http://articles.latimes.com/1998/nov/11/local/me-41653.
205. See Katie Filion & Douglas A. Powell, The Use of Restaurant Inspection Disclosure Systems as a Means of Communicating Food Safety Information, 20 J. Foodservice 287 (2009)
206. Thomas H. Hatfield & Owen H. Seiver, Preference Reversals in Grading Systems for Retail Food Facilities, 63 J. Envtl. Health 19, 23 (2001).
207. Chris J. Wiant, Scores, Grades, and Communicating About Food Safety, 61 J. Envtl. Health 37 (1999).
208. Richard H. Boehnke, International Survey on Public Posting of Restaurant Inspection Reports, and/or Grade Card Posting Schemes Based upon Health Inspections i (2000).
209. Studies of other inspection systems exist, but these are not focused on the impact of grading per se. See, e.g., Sylvanus Thompson, Ron de Burger & Olayemi Kadri, The Toronto Food Inspection and Disclosure System: A Case Study, 107 Brit. Food J. 140 (2005) (assessing Toronto's food inspection system).
210. Archon Fung, Mary Graham & David Weil, Full Disclosure: The Perils and Promise of Transparency (2007), at 194 (discussing studies by Jin and Leslie and noting that these "found significant decreases in food-borne-illness hospitalizations"); Bd. of Health, Notice of Adoption of Amendments to Article 81 of the New York City Health Code, N.Y.C. Dep't of Health & Mental Hygiene (2010), http://www.nyc.gov/html/doh /downloads/pdf/notice/2010/Article-81.pdf (noting a "20% decline in hospitalizations for food-borne illnesses" to justify the adoption of restaurant grading in New York)
211. Sarah Klein & Caroline Smith DeWaal, Dirty Dining: Have Reservations? You Will Now, Center for Sci. in the Pub. Int. 32 (June 2008), (advocating that all jurisdictions adopt restaurant grading and noting that "the grading system has contributed to a 20 percent decrease in foodborneillness-related-hospitalization" in Los Angeles).
212. Ginger Zhe Jin & Phillip Leslie, The Effect of Information on Product Quality: Evidence from Restaurant Hygiene Grade Cards, 118 Q.J. Econ. 409 (2003).
213. Ginger Zhe Jin & Phillip Leslie, Reputational Incentives for Restaurant Hygiene, 1 Am. Econ. J.: Microecon. 237 (2009) (examining Los Angeles evidence in support of restaurant grading)
214. Paul A. Simon et al., Impact of Restaurant Hygiene Grade Cards on Foodborne-Disease Hospitalizations in Los Angeles County, 67 J. Envtl. Health 32 (2005) (same)
215. Ginger Zhe Jin & Phillip Leslie, The Case in Support of Restaurant Hygiene Grade Cards, Choices, 2d Quarter 2005, at 97 (same).
216. Three-digit ZIP codes are simply the first three digits of conventional ZIP codes, and are thus more highly aggregated.
217. Josh Meyer, Loophole Hampers Restaurant Crackdown, L.A. Times, Feb. 4, 1998, http://articles.latimes.com/1998/feb/04/local/me-15324.
218. Ginger Zhe Jin & Phillip Leslie, The Effect of Information on Product Quality: Evidence from Restaurant Hygiene Grade Cards, 118 Q.J. Econ. 424-25 & tbl.3. (2003).
219. Ginger Zhe Jin & Phillip Leslie, The Effect of Information on Product Quality: Evidence from Restaurant Hygiene Grade Cards, 118 Q.J. Econ. 424 & tbl.3 (2003) (reporting an R2 of 0.5874 with restaurant fixed effects and an R2 of 0.3574 without fixed effects in a panel regression of sanitation scores). R2 "measures the proportion of the total variation [in a variable] that is explained by the fitted [regression] line. " George Casella & Roger L. Berger, Statistical Inference 524 (1990).
220. Ginger Zhe Jin & Phillip Leslie, The Effect of Information on Product Quality: Evidence from Restaurant Hygiene Grade Cards, 118 Q.J. Econ. 426 (2003).
221. Ginger Zhe Jin & Phillip Leslie, The Effect of Information on Product Quality: Evidence from Restaurant Hygiene Grade Cards, 118 Q.J. Econ. 429 & tbl.4 (2003).
222. Ginger Zhe Jin & Phillip Leslie, The Effect of Information on Product Quality: Evidence from Restaurant Hygiene Grade Cards, 118 Q.J. Econ. 433-34 (2003).
223. Ginger Zhe Jin & Phillip Leslie, The Effect of Information on Product Quality: Evidence from Restaurant Hygiene Grade Cards, 118 Q.J. Econ. 439-40 (2003).
224. Ginger Zhe Jin & Phillip Leslie, The Effect of Information on Product Quality: Evidence from Restaurant Hygiene Grade Cards, 118 Q.J. Econ. 438 (2003).
225. Clifford Winston, The Efficacy of Information Policy: A Review of Archon Fung, Mary Graham, and David Weil's Full Disclosure: The Perils and Promise of Transparency, 46 J. Econ. Literature 704, 709 (2008).
226. Winston also points to attention paid to the E. coli outbreak and the 1998 adoption by the USDA of HACCP testing. Clifford Winston, The Efficacy of Information Policy: A Review of Archon Fung, Mary Graham, and David Weil's Full Disclosure: The Perils and Promise of Transparency, 46 J. Econ. Literature 709-11 (2008).
227. The credibility of a "difference-in-differences" design hinges on the comparability of a long preintervention time series. The Jin and Leslie linear least squares regression model explains the outcome of the number of hospital admissions for digestive disorders in one of fiftyseven three-digit ZIP codes for a month (logged) with (1) fixed effects for each ZIP code and indicator for whether the illness is food-related/non-food-related, (2) fixed effects for months, (3) the proportion of a ZIP code subject to mandatory grade posting (proportion mandatory), (4) the proportion of the ZIP code subject to voluntary grade posting (i.e., when a city council has not made posting mandatory) (proportion voluntary), (5) an interaction effect between an indicator for whether the illness is food-related (food-related indicator) and the proportion mandatory, and (6) an interaction effect between the foodrelated indicator and the proportion voluntary. The joint effects of the coefficients for (2) and (4) provide the net effect estimate of a 20% reduction in food-related hospitalizations due to mandatory posting. Ginger Zhe Jin & Phillip Leslie, The Effect of Information on Product Quality: Evidence from Restaurant Hygiene Grade Cards, 118 Q.J. Econ. 438-40 & tbl.6. (2003).
228. Of course, any single randomization might still result in groups that are distinct, but randomization over a large sample of jurisdictions guarantees that the chances of such imbalances are vanishingly small.
229. Cf. Daniel E. Ho & Donald B. Rubin, Credible Causal Inference for Empirical Legal Studies, 7 Ann. Rev. L. & Soc. Sci. 17 (2011) (discussing principles for causal inference)
230. John J. Donohue III & Daniel E. Ho, Does Fighting Terrorism Increase Ordinary Crime? A Reexamination and Cautionary Tale (June 1, 2011) (unpublished manuscript) (on file with author) (illustrating the difficulty of drawing inferences about the effect of increased policing when it was part of a comprehensive response to a terrorist attack).
231. Richard H. Boehnke, International Survey on Public Posting of Restaurant Inspection Reports, and/or Grade Card Posting Schemes Based upon Health Inspections 45 (2000)
232. Bruce Vilmetti, Restaurant Ratings To Start; Health Officials Rush To Post Grade Stickers, St. Petersburg Times, Sept. 27, 1987, at 1.
233. Behind the Kitchen Door (KCBS television broadcast Nov. 16-18, 1997).
234. See Hector Tobar & Jeff Leeds, Restaurants Get a Taste of Tough County Health Policy, L.A. Times, Jan. 29, 1998, http://articles.latimes.com/1998/jan/29/news/mn-13177.
235. See County To Tighten Rules for Restaurants, L.A. Times, Dec. 10, 1997, http:// articles.latimes.com/1997/dec/10/local/me-62632.
236. See Lauren Beth Rudolph Food Safety Act of 1997 (codified at Cal. Health & Safety Code § 114004 (West 2012).
237. Hector Tobar & Jeff Leeds, Restaurants Get a Taste of Tough County Health Policy, L.A. Times, Jan. 29, 1998, http://articles.latimes.com/1998/jan/29/news/mn-13177.
238. Josh Meyer, Loophole Hampers Restaurant Crackdown, L.A. Times, Feb. 4, 1998, http://articles.latimes.com/1998/feb/04/local/me-15324.
239. An owner-initiated inspection is available once every twelve-month period to food-facility owners who want the opportunity to improve their numerical score, letter grade, or both. See L.A. County, Cal., Code § 8.04.339 (2012)
240. see also Bob Pool, Work Boils Over for Restaurant Inspectors, L.A. Times, July 19, 1999, http://articles.latimes.com/1999/jul/19 /local/me-57458 ("But restaurant operators unhappy with a bad grade can do a fast cleanup and pay a $161 fee to apply for a quick reinspection."). The reinspection fee depends on the assessed risk level of the restaurant. L.A. County, Cal., Code § 8.04.728(F) (2012).
241. See Jonathan E. Fielding et al., Making the Grade: Changing the Incentives in Retail Food Establishment Inspection, 17 Am. J. Preventive Med. 243, 244 (1999) (describing changes with the Los Angeles grading system).
242. See Jill Leovy, Tougher Restaurant Health Codes Urged, L.A. Times, Feb. 12, 1998, http://articles.latimes.com/1998/feb/12/local/me-18325.
243. For the more precise calculation of "full-time equivalent" employees, see the caption of Table 1, These seventeen jurisdictions are not an exhaustive list of grading jurisdictions, but simply provide a sense of the range of grading practices.
244. These seventeen jurisdictions are not an exhaustive list of grading jurisdictions, but simply provide a sense of the range of grading practices.
245. Submission for 2001 Samuel J. Crumbine Consumer Protection Award, Maricopa County Envtl. Services Dep't 21 (2001), http://www.fpi.org/images/2001%20maricopa _application.pdf.
246. Gideon Gil, New Rating System Set for Jefferson Restaurants, Courier-J. (Louisville, Ky.), Dec. 3, 2002, at B1. (noting in 2002 that "[r]estaurants will earn an A for a score of 100-93"); Press Release, Louisville Metro Dep't of Pub. Health & Wellness, Public Health and Wellness To Revise Food Placard System, Aug. 25, 2011, http://www.louisvilleky.gov /Health/News/11-08-placards.htm (announcing a revised 'A' cutoff of 85); E-mail Correspondence with Gretchen Boyd, Envtl. Health Supervisor, Louisville Dep't of Pub. Health & Wellness (Mar. 23, 2012) (on file with author) (noting the change of the 'A' cutoff from 93 to 90 in 2011).
247. The new terminology comes from the 2009 model food code. See U.S. Pub. Health Serv., Food & Drug Admin., Food Code 569 (2009)., at x-xi.
248. Restaurant Inspection Database, Larimer County Health & Env't, http:// www.co.larimer.co.us/food/about.asp (last visited Jan. 30, 2012) ("In addition to the traditional 100 point scoring system which has been used in the past, LCDH&E has developed its own food establishment rating system called the 'Risk Index.' This rating system is based upon similar models used in other parts of the U.S..... Like golf scores, the lower the risk value, the better the sanitation level.... There are 569 possible value points in the risk index rating system, 530 are for critical items and 39 for non-critical items.").
249. See Intro to Smiley System, Danish Veterinary & Food Admin., http://www.findsmiley.dk /en-US/Forside.htm (last visited Apr. 16, 2012).
250. Of course, what we find in these jurisdictions may not be representative of restaurant grading elsewhere.
251. See Ass'n of Food & Drug Officials, Real Progress in Food Code Adoptions, U.S. Food & Drug Admin. (July 1, 2011), http://www.fda.gov/downloads/Food/FoodSafety/RetailFoodProtection /FederalStateCooperativePrograms/UCM230336.htm.
252. Cal. Health & Safety Code § 114004(a)(3) (West 2012).
253. Gary W. Erbeck, Samuel J. Crumbine Consumer Protection Award 2005 Submittal, County of San Diego Dep't of Envtl. Health 3 (Mar. 11, 2005), http://www.fpi.org/images /san%20diego%20application.pdf.
254. See Food Facility Inspection Search, County of San Diego, http://www.sdcounty.ca.gov /deh/fhd/ffis/intro.html (last visited Jan. 31, 2012).
255. Cal. Health & Safety Code § 113789 (West 2012).
256. Food & Hous. Div., Retail Food Facility Operator's Guide, County of San Diego Dep't of Envtl. Health 6 (2007), http://www.sdcounty.ca.gov/deh/food/pdf /publications_opguide.pdf [hereinafter Retail Food Facility Operator's Guide] (Violation 13).
257. See Food Facility Inspection Search: Directed, County of San Diego, http://www.sdcounty.ca.gov/deh/fhd/ffis/insp_result/directed.html (last visited Apr. 24, 2012).
258. Brooke Williams & Agustín Armendariz, A Recipe for Trouble: Coming Clean on Restaurant Grades, San Diego Union-Trib., July 22, 2007, http://www.signonsandiego.com /uniontrib/20070722/news_lz1n22recipe.html.
259. Food & Hous. Div., Retail Food Facility Operator's Guide, County of San Diego Dep't of Envtl. Health 29 (2007), http://www.sdcounty.ca.gov/deh/food/pdf /publications_opguide.pdf [hereinafter Retail Food Facility Operator's Guide] (Violation 13).
260. San Diego County, Cal., Code of Reg. Ordinances § 61.107(a) (2012).
261. San Diego County, Cal., Code of Reg. Ordinances § 61.107(b)-(c)
262. Food & Hous. Div., Retail Food Facility Operator's Guide, County of San Diego Dep't of Envtl. Health 28 (2007), http://www.sdcounty.ca.gov/deh/food/pdf /publications_opguide.pdf [hereinafter Retail Food Facility Operator's Guide] (Violation 13).
263. Food Program, County of San Diego, http://www.sdcounty.ca.gov/deh/food/food.html (last visited Jan. 31, 2012).
264. Brooke Williams & Agustín Armendariz, A Recipe for Trouble: Coming Clean on Restaurant Grades, San Diego Union-Trib., July 22, 2007, http://www.signonsandiego.com /uniontrib/20070722/news_lz1n22recipe.html.; E-mail Correspondence with Bao Huynh, Supervising Envtl. Health Specialist, Food & Hous. Div., San Diego Cnty. Dep't of Envtl. Health (Apr. 11, 2012) (on file with author)
265. See Food Facility Inspection Search: Directed, County of San Diego, http://www.sdcounty.ca.gov/deh/fhd/ffis/insp_result/directed.html (last visited Apr. 24, 2012).
266. San Diego Cnty. Grand Jury 2006-2007, "A" Grades in San Diego County Restaurants, Deserved or Not?, County of San Diego 3 (May 7, 2007), http://www.sdcounty.ca.gov /grandjury/reports/2006_2007/restaurantgrade.pdf.
267. Gary W. Erbeck, Samuel J. Crumbine Consumer Protection Award 2005 Submittal, County of San Diego Dep't of Envtl. Health 6 (Mar. 11, 2005), http://www.fpi.org/images /san%20diego%20application.pdf.
268. Job Descriptions & Salaries, Environmental Health Specialist I, County of San Diego, http://agency.governmentjobs.com/sdcounty/default.cfm?action =viewclassspec&classSpecID=80722&agency=14088&viewOnly=yes (last visited Feb. 3, 2012).
269. Samuel J. Crumbine Consumer Protection Award: Past Crumbine Award Winners, Foodservice Packaging Inst., http://www.fpi.org/images/past%20crumbine%20award%20winners.pdf (last visited Jan. 31, 2012).
270. Thomas Peacock, Is It Safe To Eat Out? How Our Local Health Officials Inspect Restaurants To Assure Food Safety... or Do They? 344 (2002). (assigning San Diego a grade of 'C' based on a qualitative survey).
271. San Diego Cnty. Grand Jury 2006-2007, "A" Grades in San Diego County Restaurants, Deserved or Not?, County of San Diego 3 (May 7, 2007), http://www.sdcounty.ca.gov /grandjury/reports/2006_2007/restaurantgrade.pdf.
272. San Diego Cnty. Grand Jury 2006-2007, "A" Grades in San Diego County Restaurants, Deserved or Not?, County of San Diego 4 (May 7, 2007), http://www.sdcounty.ca.gov /grandjury/reports/2006_2007/restaurantgrade.pdf.
273. San Diego Cnty. Grand Jury 2006-2007, "A" Grades in San Diego County Restaurants, Deserved or Not?, County of San Diego 3 (May 7, 2007), http://www.sdcounty.ca.gov /grandjury/reports/2006_2007/restaurantgrade.pdf.
274. San Diego Cnty. Grand Jury 2006-2007, "A" Grades in San Diego County Restaurants, Deserved or Not?, County of San Diego 4 (May 7, 2007), http://www.sdcounty.ca.gov /grandjury/reports/2006_2007/restaurantgrade.pdf. The grand jury focused primarily on restaurant closures by the department, as is evident from the types of information the grand jury concluded the website should contain (i.e., restaurant name and location, date of closure, reason for closure, date reopened, and result of follow-up inspection). As we argue in Part VII, all inspection data should be disclosed.
275. See San Diego Food Facility Inspection Search, County of San Diego, http://www2.sdcounty.ca.gov/ffis (last visited Jan. 31, 2012).
276. Out of 11,813 scored inspections, only fifteen establishments received a score below 90.
277. San Diego County, Cal., Code of Reg. Ordinances § 61.107(b) (2012)
278. Food & Hous. Div., Retail Food Facility Operator's Guide, County of San Diego Dep't of Envtl. Health 29 (2007), http://www.sdcounty.ca.gov/deh/food/pdf /publications_opguide.pdf [hereinafter Retail Food Facility Operator's Guide] (Violation 13)
279. Dep't of Envtl. Health, Food Facility Fee Schedule Effective August 24, 2012, County of San Diego, http://www.sdcounty.ca.gov /deh/food/pdf/publications_feeschedule.pdf (last visited Sept. 2, 2012)
280. Telephone Interview with Celia Kroy, Envtl. Health Specialist & Specialist on Duty, San Diego Dep't of Envtl. Health (Jan. 19, 2012).
281. The same pattern holds for closures of restaurants. Out of sixty-seven graded restaurants that have been closed, the median time until the restaurant was reopened was the same day. Four out of five graded restaurants that are closed reopen within one day. Note that such regrading alone does not account for the discontinuity at 90. The difference in the number of restaurants just above and below the threshold of 90 points is much larger than the number of restaurants paying for reinspections.
282. Food & Hous. Div., Retail Food Facility Operator's Guide, County of San Diego Dep't of Envtl. Health 6 (2007), http://www.sdcounty.ca.gov/deh/food/pdf /publications_opguide.pdf [hereinafter Retail Food Facility Operator's Guide] (Violation 13)
283. Richard H. Boehnke, International Survey on Public Posting of Restaurant Inspection Reports, and/or Grade Card Posting Schemes Based upon Health Inspections 24-25 (2000)
284. Ed Sylvester, Making Sure Your Eating Places Are A-OK: Inspectors Rate S.D. Restaurants, L.A. Times, May 25, 1980, at A1.
285. Gary W. Erbeck, Samuel J. Crumbine Consumer Protection Award 2005 Submittal, County of San Diego Dep't of Envtl. Health 15 (Mar. 11, 2005), http://www.fpi.org/images /san%20diego%20application.pdf. (emphasis added).
286. In statistical terms, we of course expect some regression to the mean, but the correlation coefficient provides one sense of the relative weight of systematic-restaurant-specific-factors relative to stochastic factors.
287. To be precise, Figure 4 plots scores across the first two observed repeat routine inspections for scored (but not necessarily graded) establishments. Results are substantively the same for the subset of scored and graded restaurants. There are slightly more restaurants scoring below 90 than in Figure 3, which plots the most recent inspection score as of November 2011, while Figure 4 plots the first two routine inspections from 2007 onward. Because the frequency of inspections is tied to the risk of the establishment, we do not plot all pairs of inspections, which would over-represent high-risk establishments.
288. This is based on a simple linear least squares regression of scores in cycle 2 as the outcome and scores in cycle 1 as the main explanatory variable for the full dataset.
289. This is based on a simple linear least squares regression of scores in cycle 2 as the outcome and scores in cycle 1 as the main explanatory variable for the full dataset. The same model is fit to the subset of 'A'-graded restaurants.
290. Ginger Zhe Jin & Phillip Leslie, The Effect of Information on Product Quality: Evidence from Restaurant Hygiene Grade Cards, 118 Q.J. Econ. 424 & tbl.3 (2003) (finding in an earlier study by Jin and Leslie that just under a quarter of the variation in restaurant inspections is explained by time-invariant restaurant-specific attributes).
291. It is possible that anchoring bias explains the consistency in San Diego results if inspectors are aware of the previous inspection score. But the real puzzle, as we explore below, is the relative consistency in San Diego and relative inconsistency in New York. In both jurisdictions, inspectors appear to have access to prior inspection results.
292. See Food Safety and Community Sanitation, N.Y.C. Dep't of Health & Mental Hygiene, http://www.nyc.gov/html/doh/html/inspect/insp.shtml (last visited Feb. 1, 2012).
293. Window guards are child-safety guards on apartment windows.
294. See Bureau of Mgmt. Audit, Office of the Comptroller, City of N.Y., Audit Report on the Department of Health & Mental Hygiene Oversight of the Correction of Health Code Violations at Restaurants 1 (2009) [hereinafter 2009 Audit]
295. Office of Community Sanitation: Special Population Inspection Program, N.Y.C. Dep't of Health & Mental Hygiene, http://www.nyc.gov/html/doh/html/inspect/comm-san.shtml#spip (last visited Feb. 1, 2012).
296. See 2009 Executive Budget, N.Y.C. Dep't of Health & Mental Hygiene 14 (2009), http://council.nyc.gov/html/initiatives/FY09PBB_MayUpdate/051208_FY09_DOHMH.pdf.
297. See Glenn Collins, Restaurant Grading Begins in New York, N.Y. Times, July 27, 2010, http://www.nytimes.com/2010/07/28/nyregion/28inspect.html. When New York's Independent Budget Office (IBO) reviewed City Department of Health and Mental Hygiene (DOHMH)'s budget programmatically, it actually listed the budget for the Bureau of Food Safety and Community Sanitation (BFSCS) as $344,000 with one full-time position. Instead, IBO allocated sanitarians to "General Environmental Health." See IBO's Programmatic Review of the 2006 Budget as of the November Financial Plan, N.Y.C. Indep. Budget Office 21 (2006), http://www.ibo.nyc.ny.us/iboreports/agencyBudgets05 /DOHMH%20Program%20Budget.pdf
298. Telephone Interview with Doug Turetsky, Chief of Staff & Commc'ns Dir., N.Y.C. Indep. Budget Office (Jan. 10, 2012).
299. See Bureau of Mgmt. Audit, Office of the Comptroller, City of N.Y., Audit Report on the Department of Health & Mental Hygiene Oversight of the Correction of Health Code Violations at Restaurants 3 (2009) [hereinafter 2009 Audit]
300. Notice of Examination: Public Health Sanitarian, N.Y.C. Dep't of Citywide Admin. Services Application Unit (2010), http://www.nyc.gov/html/dcas/downloads/pdf/noes /201101012000.pdf
301. Public Health Sanitarian Series, N.Y. St. Dep't of Health, http://www.health.ny.gov/prevention/public_health_works/careers/public_health_sanitarian.htm (last visited Feb. 1, 2012).
302. N.Y. Comp. Codes R. & Regs. tit. 10, § 14-1 (1992).
303. See N.Y. State Rest. Ass'n v. N.Y.C. Dep't of Health & Mental Hygiene, 798 N.Y.S.2d 711 (N.Y. Sup. Ct. 2004)
304. see also Jennifer Steinhauer, New Restaurant Rules Violated City Charter, a Judge Decides, N.Y. Times, Oct. 29, 2004, http://www.nytimes.com/2004/10/29 /nyregion/29restaurant.html (describing judicial decision requiring public comment before the adoption of scoring system).
305. See Comm'r of Health & Mental Hygiene, Notice of Adoption of an Amendment to Title 24 of the Rules of the City of New York Adding Chapter 23 ("Food Service Establishment Inspection Procedures"), 132 City Rec. 883 (Feb. 18, 2005).
306. See Comm'r of Health & Mental Hygiene, Notice of Adoption of an Amendment to Title 24 of the Rules of the City of New York Adding Chapter 23 ("Food Service Establishment Inspection Procedures"), 132 City Rec. 883 (Feb. 18, 2005).
307. See Comm'r of Health & Mental Hygiene, Notice of Adoption of an Amendment to Title 24 of the Rules of the City of New York Adding Chapter 23 ("Food Service Establishment Inspection Procedures"), 132 City Rec. 884 (Feb. 18, 2005).
308. Inspection Scoring System for Food Service Establishments, N.Y.C. Dep't of Health & Mental Hygiene 11 (2005), http://www.nyc.gov/html/doh/downloads/pdf/inspect/inspect-food-safety-book.pdf.
309. Inspection Scoring System for Food Service Establishments, N.Y.C. Dep't of Health & Mental Hygiene 4 (2005), http://www.nyc.gov/html/doh/downloads/pdf/inspect/inspect-food-safety-book.pdf.
310. 132 City Rec. 884 (Feb. 18, 2005).
311. N.Y., N.Y. Health Code § 3.11 (2012).
312. 132 City Rec. 884 (Feb. 18, 2005).
313. See Bureau of Mgmt. Audit, Office of the Comptroller, City of N.Y., Audit Report on the Department of Health & Mental Hygiene Oversight of the Correction of Health Code Violations at Restaurants 9 (2009) [hereinafter 2009 Audit]
314. Press Release, N.Y.C. Dep't of Health & Mental Hygiene, Health Department Announces "Golden Apple" Award for Restaurants with Superior Food Safety (May 6, 2004), http://www.nyc.gov/html/doh/html/press_archive04/pr048-0506.shtml
315. See Bureau of Mgmt. Audit, Office of the Comptroller, City of N.Y., Audit Report on the Department of Health & Mental Hygiene Oversight of the Correction of Health Code Violations at Restaurants 16-17 (2009) [hereinafter 2009 Audit]
316. See Bureau of Mgmt. Audit, Office of the Comptroller, City of N.Y., Audit Report on the Department of Health & Mental Hygiene Oversight of the Correction of Health Code Violations at Restaurants 9 (2009) [hereinafter 2009 Audit]
317. In December 2007, DOHMH clarified that violations of New York's ban on artificial transfat foods would not count for sanitation scoring purposes, although inspectors would cite establishments for such violations. See Notice of Adoption of Amendments to Chapter 23 (Food Service Establishment Inspection Procedures) of Title 24 of the Rules of the City of New York, 134 City Rec. 5,085 (Dec. 27, 2007). New York similarly introduced calorie posting and food allergy disclosures for certain restaurants in 2008 and 2009, respectively. See Comm'r of Mental Health & Hygiene, Notice of Adoption of a New Chapter 27 (Food Allergy Information) in Title 24 of the Rules of the City of New York, Dep't of Health & Mental Hygiene (2009), http://www.nyc.gov/html/doh/downloads/pdf/notice/food-allergy-information.pdf; Press Release, N.Y.C. Dep't of Health & Mental Hygiene, Board of Health Votes To Require Chain Restaurants To Display Calorie Information in New York City (Jan. 22, 2008), http://www.nyc.gov/html/doh/html/pr2008/pr008-08.shtml. In October 2008, to harmonize its inspection system with state amendments, DOHMH added two violations for "reduced oxygen packaging" (a method of removing oxygen when storing food to limit Clostridium botulinum) and four violations to facilitate HACCP management, and amended in small part the language of four existing violations. See Comm'r of Health & Mental Hygiene, Notice of Adoption of Amendments to Chapter 23 (Food Service Establishment Sanitary Inspection Procedures) of Title 24 of the Rules of the City of New York, 135 City Rec. 3,159 (Sept. 29, 2008).
318. See Notice of Adoption of Amendments to Chapter 23 (Food Service Establishment Procedures) of Title 24 of the Rules of the City of New York, 136 City Rec. 2,645 (June 23, 2009).
319. See Bureau of Mgmt. Audit, Office of the Comptroller, City of N.Y., Audit Report on the Department of Health & Mental Hygiene Oversight of the Correction of Health Code Violations at Restaurants 1 (2009) [hereinafter 2009 Audit]
320. See Bureau of Mgmt. Audit, Office of the Comptroller, City of N.Y., Audit Report on the Department of Health & Mental Hygiene Oversight of the Correction of Health Code Violations at Restaurants 4-5 (2009) [hereinafter 2009 Audit].
321. See Bureau of Mgmt. Audit, Office of the Comptroller, City of N.Y., Audit Report on the Department of Health & Mental Hygiene Oversight of the Correction of Health Code Violations at Restaurants 1 (2009) [hereinafter 2009 Audit].
322. See Bureau of Mgmt. Audit, Office of the Comptroller, City of N.Y., Audit Report on the Department of Health & Mental Hygiene Oversight of the Correction of Health Code Violations at Restaurants 14 (2009) [hereinafter 2009 Audit].
323. See Bureau of Mgmt. Audit, Office of the Comptroller, City of N.Y., Audit Report on the Department of Health & Mental Hygiene Oversight of the Correction of Health Code Violations at Restaurants 16 (2009) [hereinafter 2009 Audit]. DOHMH also responded that it "recognized deficiencies in its current system of OCR scanning technology that depends on handwriting recognition technology to lift. "
324. See Bureau of Mgmt. Audit, Office of the Comptroller, City of N.Y., Audit Report on the Department of Health & Mental Hygiene Oversight of the Correction of Health Code Violations at Restaurants 16 (2009) [hereinafter 2009 Audit]. DOHMH also responded that it "recognized deficiencies in its current system of OCR scanning technology that depends on handwriting recognition technology to lift. "
325. See Bureau of Mgmt. Audit, Office of the Comptroller, City of N.Y., Audit Report on the Department of Health & Mental Hygiene Oversight of the Correction of Health Code Violations at Restaurants 13 (2009) [hereinafter 2009 Audit].
326. Jeremy Smerd, Tick, Tick, Tick for Bloomie's Legacy, Crain's N.Y. Bus., Jan. 15, 2012, http://www.crainsnewyork.com/article/20120115/politics/301159963.
327. See 137 City Rec. 1608 (June 15, 2010); 137 City Rec. 698 (Mar. 23, 2010); see also N.Y., N.Y. Health Code § 81.51(c) (2011).
328. 137 City Rec. 1607 (June 15, 2010).
329. 137 City Rec. 1607 (June 15, 2010).
330. See Restaurant Letter Grading: The First Year, N.Y.C. Dep't of Health & Mental Hygiene 3 (2011), http://www.nyc.gov/html/doh/downloads/pdf/rii/restaurant-grading-1-year-report.pdf (noting that reinspection occurs "about a month later"). In the interim period, restaurants were required to continue to post a prior grade, if any. See 137 City Rec. 1608 (June 15, 2010).
331. In Los Angeles, such reinspections are limited in that they only examine violations cited during the initial inspection. This difference was widely contested by the New York Restaurant Association. See, e.g., Concerning Letter Grades Proposal, Hearing Before the N.Y.C. Dep't of Health & Mental Hygiene (Feb. 5, 2010) (statement of Robert Bookman, N.Y.C. Counsel, N.Y. State Rest. Ass'n).
332. See 137 City Rec. 1607 (June 15, 2010).
333. See 137 City Rec. 1607 (June 15, 2010).
334. See 137 City Rec. 1607 (June 15, 2010).
335. See 137 City Rec. 1607 (June 15, 2010).
336. See 137 City Rec. 1608 (June 15, 2010). The Rules are actually unclear about the impact of administrative hearings for a notice of violation issued in the initial inspection. Notices of violation can be issued in any scored inspection, 137 City Rec. 1607 (June 15, 2010), but a grade is required to be posted upon resolution of an administrative hearing for a reinspection, 137 City Rec. 1608 (June 15, 2010). It is unclear, for example, what ramifications an administrative hearing that reduces below 14 points an initial inspection score-which would retrospectively obviate the reinspection-has on the grade, which is supposed to be based on a reinspection when conducted. 137 City Rec. 1607 (June 15, 2010) ("The Department shall issue a letter grade of 'A' to any establishment that receives fewer than 14 points on either the initial inspection or reinspection in a cycle. ") (emphasis added), 137 City Rec. 1608 (June 15, 2010) ("[I]f the establishment does not appear at the Administrative Tribunal... the establishment shall, on the date of the hearing, post the letter grade card provided by the Department at the reinspection. ") (emphasis added). In June 2011, the Mayor transferred the responsibility for holding administrative hearings from the DOHMH Administrative Tribunal to the New York City Health Tribunal in the Office of Administrative Trials and Hearings (OATH). 137 City Rec. 1607 (June 15, 2010) (requiring adjudication by OATH, of which the New York City Health Tribunal is a component), with Exec. Order No. 148, Transfer of Certain Tribunals and Adjudicatory Functions Consistent with Mayor's Committee Report (June 8, 2011) (requiring adjudication by the New York City Health Tribunal).
337. For example, a 2B violation (the second entry in Table 3) was amended to allow conditions to change when the same food was out of the holding temperature in different areas. In 2005, a 2B condition II violation was found for "[t]wo hot food items out of temperature. Example: 8 chicken wings and cooked rice. " Inspection Scoring System for Food Service Establishments, N.Y.C. Dep't of Health & Mental Hygiene 11 (2005), http://www.nyc.gov/html/doh/downloads/pdf/inspect/inspect-food-safety-book.pdf., at 11. In 2010, a 2B condition II violation was found for "[t]wo hot food items out of temperature or the same type of food out of temperature in two different areas. Example: one tray of chicken wings and a pot of rice held at 115°F; or one tray of chicken wings on the steam table and one tray of chicken wings in the food preparation area held at 115°F." Press Release, N.Y.C. Dep't of Health & Mental Hygiene, Health Department Announces "Golden Apple" Award for Restaurants with Superior Food Safety (May 6, 2004), http://www.nyc.gov/html/doh/html/press_archive04/pr048-0506.shtml, at 8. In addition, some "Other Critical[]" violations were deleted, as was a violation for "food intended for consumption in contact with toxic material" that duplicated other contamination violations. N.Y.C. Dep't of Health & Mental Hygiene, Notice of Adoption of a Rule Repealing and Recodifying Chapter 23 of Title 24 of the Rules of the City of New York, 137 City Rec. 1606-11 (June 15, 2010).
338. Letter Grading for Sanitary Inspections: What It Means for Restaurants and Consumers, N.Y.C. Dep't of Health & Mental Hygiene 2 (June 2010), http://www.nyc.gov/html/oath /downloads/pdf/restaurant-grading-faq.pdf [hereinafter Grading: What It Means].
339. Technically, the rules were published on June 15, 2010, and became effective July 15, 2010. See 137 City Rec. 1,606 (June 15, 2010); Comm'r of Health & Mental Hygiene, Notice of Adoption of Amendments to Chapter 23 of Title 24 of the Rules of the City of New York, Dep't of Health & Mental Hygiene 1 (2010), http://www.nyc.gov/html/doh/downloads/pdf /notice/2010/notice-chap-23-title-24-the-rules-of-nyc-correction.pdf (noting effective date of July 15, 2010). Grading's implementation, however, did not begin until July 27, 2010. See How We Score and Grade, N.Y.C. Dep't of Health & Mental Hygiene 1 (2012), http://www.nyc.gov/html/doh/downloads/pdf/rii/how-we-score-grade.pdf (noting that "[i]nspections before July 27, 2010" are ungraded).
340. Letter Grading for Sanitary Inspections: What It Means for Restaurants and Consumers, N.Y.C. Dep't of Health & Mental Hygiene 2 (June 2010), http://www.nyc.gov/html/oath /downloads/pdf/restaurant-grading-faq.pdf
341. See Restaurant Letter Grading: The First Year, N.Y.C. Dep't of Health & Mental Hygiene 3 (2011), http://www.nyc.gov/html/doh/downloads/pdf/rii/restaurant-grading-1-year-report.pdf (noting that reinspection occurs "about a month later"). In the interim period, restaurants were required to continue to post a prior grade, if any. See 137 City Rec. 1608 (June 15, 2010).
342. See Restaurant Letter Grading: The First Year, N.Y.C. Dep't of Health & Mental Hygiene 3 (2011), http://www.nyc.gov/html/doh/downloads/pdf/rii/restaurant-grading-1-year-report.pdf (noting that reinspection occurs "about a month later"). In the interim period, restaurants were required to continue to post a prior grade, if any. See 137 City Rec. 1 (June 15, 2010).. The report, problematically, does not disclose the underlying survey instrument. Upon obtaining the survey instrument, the interpretation is arguably imprecise. The 88% figure is the sum of 36% who "always, " 29% who "most of the time, " and 23% who "some of the time" "consider the letter grades, " assuming the respondent has seen the grades (true of 70% of respondents). See Baruch Coll., Sch. of Pub. Affairs, NYC DOHMH Restaurant Program Evaluation Poll (July 2011) (unpublished survey) (on file with author). A more accurate statement would be that six of ten New Yorkers have seen and consider the letter grades at least some of the time.
343. Christie Rotondo & Rich Schapiro, New Yorkers Won't Eat at a Restaurant with a 'C' Grade from Health Department, Zagat Survey Says, N.Y. Daily News, Oct. 5, 2011, http://articles.nydailynews.com/2011-10-05/entertainment/30261644_1_zagat-le-bernardin-c-rated.
344. See Restaurant Letter Grading: The First Year, N.Y.C. Dep't of Health & Mental Hygiene 2 (2011), http://www.nyc.gov/html/doh/downloads/pdf/rii/restaurant-grading-1-year-report.pdf (noting that reinspection occurs "about a month later"). In the interim period, restaurants were required to continue to post a prior grade, if any. See 137 City Rec. 1608 (June 15, 2010).
345. See Restaurant Letter Grading: The First Year, N.Y.C. Dep't of Health & Mental Hygiene 2 (2011), http://www.nyc.gov/html/doh/downloads/pdf/rii/restaurant-grading-1-year-report.pdf (noting that reinspection occurs "about a month later"). In the interim period, restaurants were required to continue to post a prior grade, if any. See 137 City Rec. 1608 (June 15, 2010).
346. See Restaurant Letter Grading: The First Year, N.Y.C. Dep't of Health & Mental Hygiene 3 (2011), http://www.nyc.gov/html/doh/downloads/pdf/rii/restaurant-grading-1-year-report.pdf (noting that reinspection occurs "about a month later"). In the interim period, restaurants were required to continue to post a prior grade, if any. See 137 City Rec. 1608 (June 15, 2010).
347. See Restaurant Letter Grading: The First Year, N.Y.C. Dep't of Health & Mental Hygiene 3 (2011), http://www.nyc.gov/html/doh/downloads/pdf/rii/restaurant-grading-1-year-report.pdf (noting that reinspection occurs "about a month later"). In the interim period, restaurants were required to continue to post a prior grade, if any. See 137 City Rec. 1608 (June 15, 2010).
348. See Restaurant Letter Grading: The First Year, N.Y.C. Dep't of Health & Mental Hygiene 5 (2011), http://www.nyc.gov/html/doh/downloads/pdf/rii/restaurant-grading-1-year-report.pdf (noting that reinspection occurs "about a month later"). In the interim period, restaurants were required to continue to post a prior grade, if any. See 137 City Rec. 1608 (June 15, 2010).
349. DOHMH's 18 month report, Restaurant Grading in New York City at 18 Months, N.Y.C. Dep't of Health & Mental Hygiene (2012), http://www.nyc.gov/html/doh/downloads /pdf/rii/restaurant-grading-18-month-report.pdf, similarly reports only superficial claims that are difficult to understand or replicate.
350. Most compliance inspections are recorded as unscored in the dataset. For the analysis of compliance inspections, we of course include these in our analysis. For seventy-four restaurant-inspection dates, action codes and scores are not homogeneous. We omit these restaurants from our analysis.
351. See H.G. Parsa et al., Why Restaurants Fail, 46 Cornell Hotel & Restaurant Admin. Q. 304, 309 & ex. 1 (2005).
352. We attempted to access the inspection-specific data from multiple California-based machines on multiple operating systems on multiple days and with multiple browsers. The Chief Technology Officer at Stanford Law School was not able to solve the problem.
353. By cross-validation, we mean that this sample of five hundred inspections was not used to develop the classification algorithm.
354. For completeness, the other kinds of inspections are as follows. After a restaurant is shut down, it must undergo an inspection to reopen. If such an inspection is successful, it counts as a "reopening inspection, " triggering a subsequent initial inspection; if not, it counts as a "reclosing inspection, " keeping the restaurant closed. "Pre-permit inspections" are conducted for start-up restaurants prior to operation, and are followed by an initial inspection. To be precise, we classify as an initial inspection an initial operational pre-permit inspection, because the subsequent inspection typically is a reinspection (e.g., Aunt Rosie's Coffee Shop and Diner). We classify as a pre-permit inspection an initial nonoperational pre-permit inspection, because the subsequent inspection is typically an initial inspection (e.g., Crown Fried Chicken, 3486 Broadway).
355. See Restaurant Letter Grading: The First Year, N.Y.C. Dep't of Health & Mental Hygiene 5 (2011), http://www.nyc.gov/html/doh/downloads/pdf/rii/restaurant-grading-1-year-report.pdf (noting that reinspection occurs "about a month later"). In the interim period, restaurants were required to continue to post a prior grade, if any. See 137 City Rec. 1608 (June 15, 2010).
356. See Sumathi Reddy & Hilke Schellmann, Many Eatery High Marks Are Close Call, Wall St. J., (Jan. 21, 2011, 10:49 AM), http://fivethirtyeight.blogs.nytimes.com/2011/01/19/grading-new-york-restaurants-whats-in-an-a/?comments#permid=6.
357. See Reuven Blau & Simone Weichselbaum, How Eateries Avoid Health Dept. Letter Grades, N.Y. Daily News, Jan. 9, 2012, http://articles.nydailynews.com/2012-01-09/news/30605668 _1_letter-grades-andrew-rigic-restaurants.
358. Aaron Rutkoff, Restaurant Makes Best Out of 'B' Grade, Wall St. J.: Metropolis (Sept. 17, 2010, 4:04 PM), http://blogs.wsj.com/metropolis/2010/09/17/restaurant-makes-the-best-of-b-grade.
359. The p-value is calculated from a Fisher's exact test applied to a two-by-two contingency table with rows representing scores of 13 and 14 and columns representing the pre-and post-grading periods.
360. The difference of roughly 0.6 violations is statistically significant (p-value from t-test < 0.0001).
361. 137 City Rec. 1607 (June 15, 2010).
362. Thomas H. Hatfield & Owen H. Seiver, Preference Reversals in Grading Systems for Retail Food Facilities, 63 J. Envtl. Health 23 (2001). ("[T]he re-inspection grade is less likely to be an unbiased indication of ongoing operations. ").
363. See Restaurant Letter Grading: The First Year, N.Y.C. Dep't of Health & Mental Hygiene 4 (2011), http://www.nyc.gov/html/doh/downloads/pdf/rii/restaurant-grading-1-year-report.pdf (noting that reinspection occurs "about a month later"). In the interim period, restaurants were required to continue to post a prior grade, if any. See 137 City Rec. 1608 (June 15, 2010).
364. After the first draft of this Article, the New York Post reported that the manager of Per Se, whose owner has ties to Mayor Bloomberg, called DOHMH to improve the sanitation score of an inspection outside our observation period. See David Seifman, 'A-Rated' Assist for 'Connected' Eatery Following Violations: Se What? 'Connected' Eatery's Grade Bump, N.Y. Post, Mar. 3, 2012, http://www.nypost.com/p/news/local/manhattan/rated_assist_T4QQe1SEBqiiqH02fLltrI.
365. For some discussion of the limits of R2 as a measure of substantive consistency, see Daniel E. Ho, Reconciling Punitive Damages Evidence, 166 J. Institutional & Theoretical Econ. 27 (2010).
366. The average number of days between scored inspections for an establishment is 151 (standard deviation = 139) in New York and 184 (standard deviation = 116) in San Diego. Although Table 1 indicates that the minimum number of annual inspections is one in New York and two in San Diego, those minima refer to the number of inspections for the lowestrisk types of establishments.
367. One hundred fifteen is more than the number of violations noted in the caption of Table 3 primarily because of unscored, administrative violations added since 2005.
368. Food & Hous. Div., Retail Food Facility Operator's Guide, County of San Diego Dep't of Envtl. Health 12 (2007), http://www.sdcounty.ca.gov/deh/food/pdf /publications_opguide.pdf [hereinafter Retail Food Facility Operator's Guide] (Violation 13)
369. What To Expect When You're Inspected: A Guide for Food Service Operators http://www.nyc.gov/html/doh/html/press_archive04/pr048-0506.shtml, at 13.
370. Food & Hous. Div., Retail Food Facility Operator's Guide, County of San Diego Dep't of Envtl. Health 8 (2007), http://www.sdcounty.ca.gov/deh/food/pdf /publications_opguide.pdf [hereinafter Retail Food Facility Operator's Guide] (Violation 13)
371. What To Expect When You're Inspected: A Guide for Food Service Operators http://www.nyc.gov/html/doh/html/press_archive04/pr048-0506.shtml, at 12.
372. Food & Hous. Div., Retail Food Facility Operator's Guide, County of San Diego Dep't of Envtl. Health 6 (2007), http://www.sdcounty.ca.gov/deh/food/pdf /publications_opguide.pdf [hereinafter Retail Food Facility Operator's Guide] (Violation 13)
373. What To Expect When You're Inspected: A Guide for Food Service Operators http://www.nyc.gov/html/doh/html/press_archive04/pr048-0506.shtml, at 14-15.
374. For example, a 2B violation (the second entry in Table 3) was amended to allow conditions to change when the same food was out of the holding temperature in different areas. In 2005, a 2B condition II violation was found for "[t]wo hot food items out of temperature. Example: 8 chicken wings and cooked rice. " Inspection Scoring System for Food Service Establishments, N.Y.C. Dep't of Health & Mental Hygiene 11 (2005), http://www.nyc.gov/html/doh/downloads/pdf/inspect/inspect-food-safety-book.pdf., at 11. In 2010, a 2B condition II violation was found for "[t]wo hot food items out of temperature or the same type of food out of temperature in two different areas. Example: one tray of chicken wings and a pot of rice held at 115°F; or one tray of chicken wings on the steam table and one tray of chicken wings in the food preparation area held at 115°F." Press Release, N.Y.C. Dep't of Health & Mental Hygiene, Health Department Announces "Golden Apple" Award for Restaurants with Superior Food Safety (May 6, 2004), http://www.nyc.gov/html/doh/html/press_archive04/pr048-0506.shtml, at 8. In addition, some "Other Critical[]" violations were deleted, as was a violation for "food intended for consumption in contact with toxic material" that duplicated other contamination violations. N.Y.C. Dep't of Health & Mental Hygiene, Notice of Adoption of a Rule Repealing and Recodifying Chapter 23 of Title 24 of the Rules of the City of New York, 137 City Rec. 1606-11 (June 15, 2010).
375. What To Expect When You're Inspected: A Guide for Food Service Operators http://www.nyc.gov/html/doh/html/press_archive04/pr048-0506.shtml, at 14.
376. What To Expect When You're Inspected: A Guide for Food Service Operators http://www.nyc.gov/html/doh/html/press_archive04/pr048-0506.shtml, at 15.
377. What To Expect When You're Inspected: A Guide for Food Service Operators http://www.nyc.gov/html/doh/html/press_archive04/pr048-0506.shtml, at 21, 20, 23.
378. Brian Emanuel, Grading a Food Establishment, 58 J. Envtl. Health 344 (1995) (discussing proposals to change the 100-point score worksheet of the 1976 model food code to allow for weighting by severity of violations).
379. This remains the case even if we ignore point values of 28, which, one might argue, simply represent the ability that most jurisdictions have to shut down an establishment for a serious public health hazard.
380. See Bureau of Mgmt. Audit, Office of the Comptroller, City of N.Y., Audit Report on the Department of Health & Mental Hygiene Oversight of the Correction of Health Code Violations at Restaurants 13-14 (2009) [hereinafter 2009 Audit].
381. See Bureau of Mgmt. Audit, Office of the Comptroller, City of N.Y., Audit Report on the Department of Health & Mental Hygiene Oversight of the Correction of Health Code Violations at Restaurants 13-14 (2009) [hereinafter 2009 Audit].
382. See Steve Johnson, Errors in Food Safety Checkups Inspections; Variations in Restaurant Infractions Due to Lack of Uniform Standards, San Jose Mercury News, Aug. 20, 2000, at 1A.
383. The Centers for Disease Control and Prevention estimates that there are roughly 48 million cases of foodborne illness each year, but only 128,000 hospitalizations (less than 0.3% of cases). See CDC Estimates of Foodborne Illness in the United States, Centers for Disease Control & Prevention (Feb. 2011), http://www.cdc.gov/foodborneburden/PDFs /FACTSHEET_A_FINDINGS_updated4-13.pdf
384. see also Ctrs. for Disease Control & Prevention, Surveillance for Foodborne Disease Outbreaks-United States, 2006, 58 Morbidity & Mortality Wkly. Rep. 609, 614 (2009) ("[O]nly approximately half of the [1,270] reported outbreaks [of foodborne illness] in 2006 had a confirmed etiology.... ")
385. Paul S. Mead et al., Food-Related Illness and Death in the United States, 5 Emerging Infectious Diseases 607, 609 (1999) (discussing factors complicating the surveillance of foodborne illness, including underreporting).
386. We did not examine hospitalization data, which are available only via a protracted and costly information request. Hospitalizations are an imperfect measure of food poisoning incidence because only a very small number of cases of food poisoning result in hospitalization, and diagnoses cannot be readily traced to restaurants. Paul S. Mead et al., Food-Related Illness and Death in the United States, 5 Emerging Infectious Diseases 607, 609 (1999). Constructing a credible control group to New York City is not straightforward.
387. See The Mayor's Management Report: Preliminary Fiscal 2012, City of N.Y. 3-4 (Feb. 2012), http://www.nyc.gov/html/ops/downloads/pdf/mmr/0212_mmr.pdf (citing decreases in child-care and pest-control complaints as evidence of departmental performance).
388. Of course, grading might also heighten consumer awareness of sanitation conditions or DOHMH's existence, which might increase 311 calls. It is possible that the constant rate of calls is thereby consistent with a sharp increase in sanitary conditions. Grading may also cause consumers to substitute, for example from 'B'-grade to 'A'-grade restaurants, which might relatively increase complaints in high-grade establishments and decrease complaints in low-grade establishments.
389. See Jeremy Ginsberg et al., Detecting Influenza Epidemics Using Search Engine Query Data, 457 Nature 1012, (2009) ("Because the relative frequency of certain queries is highly correlated with the percentage of physician visits in which a patient presents with influenzalike symptoms, we can accurately estimate the current level of weekly influenza activity in each region of the United States, with a reporting lag of about one day. ")
390. Camille Pelat et al., Letter to the Editor, More Diseases Tracked by Using Google Trends, 15 Emerging Infectious Diseases 1327, 1328 (2009) ("[F]or each of 3 infectious diseases, 1 well-chosen query was sufficient to provide time series of searches highly correlated with incidence. ")
391. Ari Seifter et al., The Utility of "Google Trends" for Epidemiological Research: Lyme Disease as an Example, 4 Geospatial Health 135, 135 (2010) ("Google Trends... approximate[s] certain trends previously identified in the epidemiology of Lyme disease. ").
392. This p-value is from a standard difference-in-differences least squares regression model with search volume as the dependent variable and region fixed-effects, a post-July 2010 indicator, and an interaction term for New York City and post-July 2010. The coefficient on the latter, an estimate of the treatment effect, is an increase in search volume of six units, plus or minus eight at a 95% confidence level.
393. See Restaurant Letter Grading: The First Year, N.Y.C. Dep't of Health & Mental Hygiene 2 (2011), http://www.nyc.gov/html/doh/downloads/pdf/rii/restaurant-grading-1-year-report.pdf (noting that reinspection occurs "about a month later"). In the interim period, restaurants were required to continue to post a prior grade, if any. See 137 City Rec. 1608 (June 15, 2010). ("Grading has contributed to significant improvements in restaurants' food safety practices.").
394. Ginger Zhe Jin & Phillip Leslie, The Effect of Information on Product Quality: Evidence from Restaurant Hygiene Grade Cards, 118 Q.J. Econ. 426 (2003). (detecting sharp public health benefits within one year of letter grading in Los Angeles).
395. 132 City Rec. 884 (Feb. 18, 2005).
396. 137 City Rec. 1607 (June 15, 2010).
397. The public health evidence on the relationship between sanitation scores and health risks is inconclusive. Compare Kathleen Irwin et al., Results of Routine Restaurant Inspections Can Predict Outbreaks of Foodborne Illness: The Seattle-King County Experience, 79 Am. J. Pub. Health 586 (1989) (finding sanitation scores to be predictive of foodborne illness), with
398. Timothy F. Jones et al., Restaurant Inspection Scores and Foodborne Disease, 10 Emerging Infectious Diseases 688 (2004). (finding no statistically significant association between sanitation scores and foodborne illness). Given this inconclusiveness, there is no obvious way to assess the differential risk from an 'A' to a 'B' to a 'C' restaurant. In the Irwin study, the point at which risk for foodborne illness increases is an "unsatisfactory" inspection, suggesting that there may be a threshold at worse-scoring ranges of the score.
399. This proportion is of all reinspections following an initial inspection for which the initial inspection resulted in a score of 14 or more points.
400. UAss'n of Food & Drug Officials, Real Progress in Food Code Adoptions, U.S. Food & Drug Admin. (July 1, 2011), http://www.fda.gov/downloads/Food/FoodSafety/RetailFoodProtection /FederalStateCooperativePrograms/UCM230336.htm. 204.
401. This inference is complicated because of the inconsistency of scores. Ideally, we would calculate the average frequency at which a 'C' restaurant is inspected under the pre-2010 and post-2010 systems. But the populations of pre-2010 and post-2010 'C'-range restaurants are not perfectly comparable, because (1) restaurants that received a 'C' on a post-2010 initial inspection and a 'B' upon reinspection would have been a 'C'-range restaurants before grading, and (2) some pre-2010 'B'-range restaurants might have received 'C'-range scores had they been reinspected.
402. Along similar lines, perhaps the penalty of decreased customers is so much sharper upon receipt of a 'C' grade that there is no need to conduct compliance inspections.
403. See Bureau of Mgmt. Audit, Office of the Comptroller, City of N.Y., Audit Report on the Department of Health & Mental Hygiene Oversight of the Correction of Health Code Violations at Restaurants at 5 & n.2. (2009) [hereinafter 2009 Audit].
404. See Bureau of Mgmt. Audit, Office of the Comptroller, City of N.Y., Audit Report on the Department of Health & Mental Hygiene Oversight of the Correction of Health Code Violations at Restaurants at 9 (2009) [hereinafter 2009 Audit].
405. See Restaurant Letter Grading: The First Year, N.Y.C. Dep't of Health & Mental Hygiene 3 (2011), http://www.nyc.gov/html/doh/downloads/pdf/rii/restaurant-grading-1-year-report.pdf (noting that reinspection occurs "about a month later"). In the interim period, restaurants were required to continue to post a prior grade, if any. See 137 City Rec. 1608 (June 15, 2010).
406. See 137 City Rec. 1607 (June 15, 2010).
407. See Restaurant Letter Grading: The First Year, N.Y.C. Dep't of Health & Mental Hygiene 5 (2011), http://www.nyc.gov/html/doh/downloads/pdf/rii/restaurant-grading-1-year-report.pdf (noting that reinspection occurs "about a month later"). In the interim period, restaurants were required to continue to post a prior grade, if any. See 137 City Rec. 1608 (June 15, 2010). ("Inspectors also conduct targeted, unannounced inspections for card posting compliance at restaurants required to be posting B or C cards.").
408. See Restaurant Letter Grading: The First Year, N.Y.C. Dep't of Health & Mental Hygiene 3 (2011), http://www.nyc.gov/html/doh/downloads/pdf/rii/restaurant-grading-1-year-report.pdf (noting that reinspection occurs "about a month later"). In the interim period, restaurants were required to continue to post a prior grade, if any. See 137 City Rec. 1608 (June 15, 2010). ("Inspectors also conduct targeted, unannounced inspections for card posting compliance at restaurants required to be posting B or C cards.").
409. See Bureau of Mgmt. Audit, Office of the Comptroller, City of N.Y., Audit Report on the Department of Health & Mental Hygiene Oversight of the Correction of Health Code Violations at Restaurants at 6 (2009) [hereinafter 2009 Audit]. (emphasis added) (quoting DOHMH officials).
410. For example, scorecard. org uses toxicity reports to convey health hazards more meaningfully to consumers. See Scorecard: The Pollution Information Site, http://scorecard.goodguide.com (last visited Feb. 2, 2012).
411. Samuel Issacharoff, Disclosure, Agents, and Consumer Protection, 167 J. Institutional & Theoretical Econ. 66 (2001)
412. Archon Fung, Mary Graham & David Weil, Full Disclosure: The Perils and Promise of Transparency (2007) at 122-26 (discussing the importance of information intermediaries).
413. Memorandum from Cass R. Sunstein, Adm'r, Office of Info. & Regulatory Affairs, for the Heads of Exec. Dep'ts & Agencies, Disclosure and Simplification as Regulatory Tools 12 (June 18, 2010).
414. See About Us, Yelp, http://www.yelp.com/about (last visited Apr. 8, 2012) ("Yelp had an average of approximately 66 million monthly unique visitors in Q4 2011.").
415. See About Scorecard: Scorecard's Data Sources, Scorecard: The Pollution Information Site, http://scorecard.goodguide.com/about/txt/data.html (last visited Apr. 8, 2012).
416. See What is Zillow?, Zillow, http://www.zillow.com/corp/About.htm (last visited Apr. 8, 2012).
417. For an inadvertent experiment and discussion of how to do scale equating to bridge distinct forms, see Daniel E. Ho & Timothy H. Shapiro, Evaluating Course Evaluations: An Empirical Analysis of a Quasi-Experiment at the Stanford Law School, 2000-2007, 58 J. Legal Educ. 388 (2008).
418. Quota sampling, for example, in which surveyors chose respondents within subsets of covariates (age, race, gender), infamously introduced substantial bias. See David Freedman, Robert Pisani & Roger Purves, Statistics 337-39 (4th ed. 2007).
419. See John Braithwaite & Valerie Braithwaite, The Politics of Legalism: Rules Versus Standards in Nursing-Home Regulation, 4 Soc. & Legal Stud. 307, 317 (1995) ("Reliable ratings of the quality of care in nursing homes are possible when professional raters use a limited number of criteria; but when raters use the large number of specific American regulations as their criteria, reliability is lost. ").
420. See NRC Inspection Manual Chapter 2690: Inspection Program for Dry Storage of Spent Reactor Fuel at Independent Spent Fuel Storage Installations and for 10 CFR Part 71 Transportation Packagings, Nuclear Reg. Commission 9-10 (Mar. 9, 2012), http://pbadupws.nrc.gov/docs /ML1203/ML120390415.pdf; E-mail from Rodney M. Brown, Mine Safety & Health Admin., to Mridula Raman (Mar. 26, 2012) (on file with author).
421. For mining safety, see 30 C.F.R. §§ 1-104 (2012). The regulations therein "aim to regulate all aspects of miner's [sic] safety and health. " Jay Lapat & James P. Notter, Inspecting the Mine Inspector: Why the Discretionary Function Exception Does Not Bar Government Liability for Negligent Mine Inspections, 23 Hofstra Lab. & Emp. L.J. 413, 416 (2006). For regulations concerning spent nuclear fuel storage, see 10 C.F.R. § 72 (2012).
422. See Office of the Inspector Gen., Audit Report: Audit of NRC's Oversight of Independent Spent Fuel Storage Installations Safety, Nuclear Reg. Commission 6-15 (Mar. 19, 2011), http://www.nrc.gov/reading-rm/doc-collections/insp-gen/2011/oig-11-a-12.pdf (NRC)
423. Austin Hoffman, South Dakota's Mining Controversy, Keloland. com (May 13, 2011, 9:58 PM), http://www.keloland.com/news/eyeonkeloland/NewsDetail6403.cfm?Id=115187 (MSHA)
424. Lawmakers Express Concern and Seek Answers Regarding MSHA Enforcement, Neb. Concrete & Aggregates Ass'n Newsl. (Dec. 2011), http://www.nebrconcagg.com/assets/Newsletters /December2011/Dec11news_final%20low%20res.pdf (MSHA)
425. John Thune, Inconsistent Mine Inspections Harm SD Businesses, Job Creation, John Thune: U.S. Senator-S.D. (May 13, 2011), http://www.thune.senate.gov/public/index.cfm/2011/5/inconsistent-mine-inspections-harm-sd-businesses-job-creation (MSHA).
426. John Braithwaite & Valerie Braithwaite, The Politics of Legalism: Rules Versus Standards in Nursing-Home Regulation, 4 Soc. & Legal Stud. 319-22 (1995).
427. See Michelle Cotterchio et al., Effect of a Manager Training Program on Sanitary Conditions in Restaurants, 113 Pub. Health Rep. 353 (1998) (finding that manager training and certification programs may lead to better sanitary conditions in restaurants).
428. Of course, there are different forms of randomness. A simple rule would be that an inspector could appear for the next inspection in a random interval between one and 365 days after an inspection has occurred. Stratified randomization to account for the risk of an establishment is also possible. For example, an inspector could appear in a random interval between one and 182 days for "high-risk" restaurants (however defined) and 183 and 365 days for "lowrisk restaurants" (however defined). For some discussion of randomization to reduce behavioral biases in the election context, see generally Daniel E. Ho & Kosuke Imai, Estimating Causal Effects of Ballot Order from a Randomized Natural Experiment: The California Alphabet Lottery, 1978-2002, 72 Pub. Opinion Q. 216 (2008), which shows that cognitive limitations that lead voters to be affected by ballot order can be overcome by randomization and rotation of ballot order across districts
429. Daniel E. Ho & Kosuke Imai, Randomization Inference with Natural Experiments: An Analysis of Ballot Effects in the 2003 California Recall Election, 101 J. Am. Stat. Ass'n 888 (2006), which shows the same.
430. See 137 City Rec. 1607 (June 15, 2010)
431. See How We Score and Grade, N.Y.C. Dep't of Health & Mental Hygiene 1 (2012), http://www.nyc.gov/html/doh/downloads/pdf/rii/how-we-score-grade.pdf (noting that "[i]nspections before July 27, 2010" are ungraded). ("An inspector goes back to the restaurant unannounced, typically within a month...." (emphasis added).
432. See, e.g., Explanatory Item Response Models: A Generalized Linear and Nonlinear Approach (Paul De Boeck & Mark Wilson eds., 2004)
433. cf. Michael Peress & Arthur Spirling, Scaling the Critics: Uncovering the Latent Dimensions of Movie Criticism with an Item Response Approach, 105 J. Am. Stat. Ass'n 71 (2010). Applying item response theory, for example, inter-rater adjustments could be applied to account for differences across inspectors, while differential item functioning could be applied to test for the timing of the inspection.
434. See Daniel E. Ho & Kevin M. Quinn, Improving the Presentation and Interpretation of Online Ratings Data with Model-Based Figures, 62 Am. Statistician 279, 279 (2008) (observing that current practice in online ratings fails to incorporate statistical uncertainty).
435. Cf. Omri Ben-Shahar & Carl E. Schneider, The Failure of Mandated Disclosure, 159 U. Pa. L. Rev. 743 (2011). (arguing that mandated disclosure generally fails across substantive areas, but that restaurant letter grading is one effective example).
436. See Michael Abramowicz, Ian Ayres & Yair Listokin, Randomizing Law, 159 U. Pa. L. Rev. 929 (2011)
437. Gary King et al., A "Politically Robust" Experimental Design for Public Policy Evaluation, with Application to the Mexican Universal Health Insurance Program, 26 J. Pol'y Analysis & Mgmt. 479 (2007)
438. Christine Jolls, Review of Draft 2011 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities, Office of Mgmt. & Budget (2011), http://www.whitehouse.gov/sites/default/files /omb/inforeg/2011_cb/comments/jolls.pdf (calling for experimental assessment of regulatory policy changes).
439. Archon Fung, Mary Graham & David Weil, Full Disclosure: The Perils and Promise of Transparency (2007), at 170-82.
440. David Bollier, The Promise and Peril of Big Data, Aspen Inst. (2010), http://www.aspeninstitute.org/sites/default/files/content /docs/pubs/The_Promise_and_Peril_of_Big_Data.pdf
441. Data Mining: Federal Efforts Cover a Wide Range of Uses, U.S. Gen. Acct. Office (2004), http://www.gao.gov /new.items/d04548.pdf
442. Daniel C. Esty & Reece Rushing, Governing by the Numbers: The Promise of Data-Driven Policymaking in the Information Age, Ctr. for Am. Progress (2007), http://www.americanprogress.org/wp-content/uploads/issues/2007/04/pdf/data_driven _policy_report.pdf
443. Daniel E. Ho, Big Data, Small Tax Gap? Detecting Cash-Only Tax Evasion in Manhattan Restaurants (Nov. 8, 2011) (unpublished paper) (on file with author)
444. Gary King, Albert J. Weatherhead III Univ. Professor, Harvard Univ., Horizons in Political Science Talk at the Harvard University Government Department: The Social Science Data Revolution (Mar. 30, 2011).
445. This is known by some as "Goodhart's Law. " See generally Sanjai Bhagat, Brian Bolton & Roberta Romano, The Promise and Peril of Corporate Governance Indices, 108 Colum. L. Rev. 1803 (2008) (analyzing the difficulties of summarizing corporate governance practice in one index)
446. Daniel C. Esty & Reece Rushing, Governing by the Numbers: The Promise of Data-Driven Policymaking in the Information Age, Ctr. for Am. Progress (2007), http://www.americanprogress.org/wp-content/uploads/issues/2007/04/pdf/data_driven _policy_report.pdf 38-39 (discussing how data-driven governance can improve decisionmaking but noting the risk that scorecards can "misdirect attention and incentives").
447. Terry M. Moe, The Politics of Bureaucratic Structure, in Can the Government Govern? 267, 267 (John E. Chubb & Paul E. Peterson eds., 1989) ("American public bureaucracy is not designed to be effective. ").
448. Archon Fung, Mary Graham & David Weil, Full Disclosure: The Perils and Promise of Transparency (2007), at 106-26. (discussing the sustainability of targeted transparency given the political context).
449. See Jerry L. Mashaw, Reinventing Government and Regulatory Reform: Studies in the Neglect and Abuse of Administrative Law, 57 U. Pitt. L. Rev. 405 (1996) (discussing the deep tensions between regulatory reform efforts and principles of administrative law).
450. Cass R. Sunstein, Laws of Fear: Beyond the Precautionary Principle 123 (2005).
451. See Bureau of Mgmt. Audit, Office of the Comptroller, City of N.Y., Audit Report on the Department of Health & Mental Hygiene Oversight of the Correction of Health Code Violations at Restaurants at 14 (2009) [hereinafter 2009 Audit]. (emphasis added) (quoting DOHMH officials).
452. To estimate the frequency, we report the number of inspections with an action code of 'P' (indicating that a reinspection was scheduled) and a score below 14.
453. See 137 City Rec. 1607 (June 15, 2010) (defining an "inspection cycle" as a series of inspections "consisting of at least an initial inspection and including, if triggered by the initial or any subsequent inspections within that cycle, a reinspection" and defining a "reinspection" as an "inspection conducted for the purpose of grading following receipt of a score of 14 or more points on an initial inspection" (emphasis added)
454. 137 City Rec. 1607 (June 15, 2010) (providing that when there is an increased risk to public health the Department may "inspect[] an establishment and treat[] that inspection as the initial inspection in a new cycle").
455. Inspection type descriptions can be found on the DOHMH inspection information page for any New York restaurant. See, e.g., Restaurant Inspection Information, N.Y.C. Dep't of Health & Mental Hygiene, http://a816-restaurantinspection.nyc.gov (last visited Sept. 2, 2012) (enter "1001 NIGHTS CAFE" in the "Restaurant Name" field, click "List Results, " click on the first result, and move the mouse over the question mark next to "Graded, " "Ungraded, " or "Unscored" to bring up a description of that inspection type).
456. Inspection type descriptions can be found on the DOHMH inspection information page for any New York restaurant. See, e.g., Restaurant Inspection Information, N.Y.C. Dep't of Health & Mental Hygiene, http://a816-restaurantinspection.nyc.gov (last visited Sept. 2, 2012) (enter "1001 NIGHTS CAFE" in the "Restaurant Name" field, click "List Results, " click on the first result, and move the mouse over the question mark next to "Graded, " "Ungraded, " or "Unscored" to bring up a description of that inspection type).
457. The action code 'O' appears to indicate that the restaurant reopened, while the current grade 'P' indicates a placeholder for a grade during a reopening inspection.
458. 137 City Rec. 1607 (June 15, 2010).
459. Letter Grading for Sanitary Inspections: What It Means for Restaurants and Consumers, N.Y.C. Dep't of Health & Mental Hygiene 3 (June 2010), http://www.nyc.gov/html/oath /downloads/pdf/restaurant-grading-faq.pdf [hereinafter Grading: What It Means]. This statement conflicts to some degree with New York's rules, which indicate that compliance inspections may be performed after "any inspection" that results in a score of 28 points or more. 137 City Rec. 1607 (June 15, 2010). Moreover, the DOHMH website and database do not record scores for the large bulk of compliance inspections, leading one to wonder how it is that the Department makes the judgment that the restaurant has scored below 28 points.
460. 137 City Rec. 1607 (June 15, 2010).
461. 137 City Rec. 1607 (June 15, 2010). ("An initial inspection commencing a new cycle shall be conducted within 60 to 120 days of reopening for an establishment that is authorized by the Department to reopen following a Department closure that occurs on an initial inspection or reinspection of that establishment. ").
462. The DOHMH website describes unscored inspections as ones involving "prohibiting smoking or the use of artificial trans fats or laws requiring certain chain restaurants to post calorie information. " See, e.g., Restaurant Inspection Information, N.Y.C. Dep't of Health & Mental Hygiene, http://a816-restaurantinspection.nyc.gov (last visited Sept. 2, 2012)
463. For example, we remap a 1A violation to an 18A violation. See Bureau of Food Safety & Cmty. Sanitation, Self-Inspection Worksheet for Food Service Establishments, N.Y.C. Dep't of Health & Mental Hygiene 4 (2010), http://www.nyc.gov/html/doh/downloads /pdf/rii/self-inspection-worksheet.pdf
464. Inspection Scoring System for Food Service Establishments, N.Y.C. Dep't of Health & Mental Hygiene 11 (2005), http://www.nyc.gov/html/doh/downloads/pdf/inspect/inspect-food-safety-book.pdf., at 11. In 2010, a 2B condition II violation was found for "[t]wo hot food items out of temperature or the same type of food out of temperature in two different areas. Example: one tray of chicken wings and a pot of rice held at 115°F; or one tray of chicken wings on the steam table and one tray of chicken wings in the food preparation area held at 115°F." Press Release, N.Y.C. Dep't of Health & Mental Hygiene, Health Department Announces "Golden Apple" Award for Restaurants with Superior Food Safety (May 6, 2004), http://www.nyc.gov/html/doh/html/press_archive04/pr048-0506.shtml, at 8. In addition, some "Other Critical[]" violations were deleted, as was a violation for "food intended for consumption in contact with toxic material" that duplicated other contamination violations. N.Y.C. Dep't of Health & Mental Hygiene, Notice of Adoption of a Rule Repealing and Recodifying Chapter 23 of Title 24 of the Rules of the City of New York, 137 City Rec. 23B. (June 15, 2010).
465. David Z. McSwane et al., In Search of the Ingredients of a Successful Retail Food Compliance Program, 50 J. Envtl. Health 344 (1988) ("[M]any jurisdictions advocated using the inspection as a screening device to identify high-risk operations and those requiring closer scrutiny. ").
466. Ginger Zhe Jin & Phillip Leslie, The Effect of Information on Product Quality: Evidence from Restaurant Hygiene Grade Cards, 118 Q.J. Econ. 426 (2003).
467. It is possible that some of the scoring changes stem from data-entry errors that are corrected over time. DOHMH provides no documentation for such changes. Because scoring reductions in the post-grading period stem overwhelmingly from restaurants with grades pending, our best assessment is that these reductions are the results of hearings. In a subset of cases, DOHMH reports online that "[n]o violations were recorded... or violations cited were dismissed at an administrative hearing. " E.g., Restaurant Inspection Information, N.Y.C. Dep't of Health & Mental Hygiene, http://a816-restaurantinspection.nyc.gov (last visited Sept. 2, 2012) (search "Bella Napoli, " click on "List Results, " then click on the Bella Napoli associated with "150 West 49 Street Manhattan, 10019, " and select the entry for "08/08/2011") (emphasis added).
468. The Bloomberg Administration reports that "83% of grades are unchanged between inspection and hearing. " Restaurant Letter Grading: The First Year, N.Y.C. Dep't of Health & Mental Hygiene 2 (2011), http://www.nyc.gov/html/doh/downloads/pdf/rii/restaurant-grading-1-year-report.pdf. But a larger proportion of inspections may be subject to score changes that reduce fees, but do not change the ultimate grade.
469. The North Carolina data represent thirty-six of one hundred counties in the state. The South Carolina data include only the last two inspections.
470. See Food Violation Reference, Fla. Dep't of Bus. & Prof. Reg., http:// www.myfloridalicense.com/dbpr/hr/documents/foodreference.xls (last visited Feb. 28, 2012).
471. See Long Range Program Plan: Fiscal Year 2012-2013 Through 2016-2017, Fla. Dep't of Bus. & Prof. Reg. 25 (Sept. 30, 2011), http://floridafiscalportal.state.fl.us/PDFDoc.aspx?ID=6142.
472. See Food Service Inspection Report, Fla. Dep't of Bus. & Prof. Reg. (Oct. 1, 2009), http://www.myfloridalicense.com/dbpr/hr/forms/documents/5022_015.pdf.
473. See Jana Kasperkevic, Those Health Grades You See on New York Restaurants Have Been a Windfall for the City, Bus. Insider, Mar. 26, 2012, http://articles.businessinsider.com/2012-03-26/news/31238524_1_restaurant-grade-cards-fines.
474. See Fla. Stat. § 381.0061 (2011); Chi., Ill., Bd. of Health R. & Regs. § 108 (2012).
475. Phuong Cat Le, Restaurant Inspections Skipped, Fines for Infractions Infrequent, Seattle PostIntelligencer, July 8, 2004, http://www.seattlepi.com/local/article/Restaurant-inspections-skipped-fines-for-1149005.php.
476. San Diego County, Cal., Code of Reg. Ordinances § 61.107(b) (2012)
477. Envtl. Health Serv., Food Protection Fees, AustinTexas. gov (2012), http://www.austintexas.gov/sites/default/files/files/Health /Environmental/fees_2012.pdf
478. Food Protection Program Service Fees-2012, Public Health-Seattle & King County (2012), http://www.kingcounty.gov/healthservices/health /ehs/~/media/health/publichealth/documents/ehs/2012FoodProtectionFees.ashx.