It has become fashionable for legal scholars with libertarian leanings to point to various efforts at self-regulation within religious Jewish communities as models for the effective management of commerce absent government intervention.Footnote ¹ In Kosher, Timothy Lytton, the Albert and Angela Farone Distinguished Professor of Law at Albany Law School, aligns with that tradition to the extent that he argues “[t]he industrial kosher certification system offers a model that can help improve the reliability of private third-party certification in food safety and labeling.” But refreshingly less sanguine than previous scholars in this microgenre, Lytton recognizes that even the best-organized systems of private enforcement, at most, “can promote marginal improvements in conjunction with other remedies,” including government regulation and consumer vigilance (140).

Nominally, this argument—that private third-party oversight, akin to that currently provided by major kosher certification agencies, can be a useful tool throughout the food industry to improve food safety, ensure the accuracy of nutrition labeling, and support the expansion of “ecolabeling” (the certification of a product as organic, sustainably farmed, or produced consistent with fair labor standards)—frames the book and provides a justification for Lytton's extensive exploration of contemporary industrial kashrut supervision. But this overlay, developed for an audience of secular legal scholars, could readily be detached from the book and the reader would be left with a surprisingly detailed account of how certain of today's major certification agencies came to dominate kosher supervision in the United States over the past fifty years.

Kosher begins with a survey of the history of efforts in the United States to ensure the kosher status of food. A professor of law and not history, Lytton's treatment shows no evidence of primary research and instead provides a pastiche of colorful anecdotes concerning fraud, rabbinic infighting, commercial sabotage, and labor disputes culled from other sources. According to Lytton, fraud in the kosher meat industry became rampant in the second half of the nineteenth century as the sudden influx of immigrants from many different European communities created a lucrative mass market for kosher food that outstripped the ability of any individual synagogue to supervise what previously had been a small number of kosher butchers from which its members procured meat. Central to this story, though not explored in depth by Lytton, is the impact on social and religious life as Jews immigrating to America transitioned from living in relatively localized communities, where those who cared to could assess and rely on the trustworthiness of the local butcher, to living in more disparate and diverse communities with greater anonymity and fewer social connections to one's commercial counterparties.

Lytton describes a number of different failed efforts up through the 1940s by various institutions to staunch fraud in the kosher market. He concludes that trade associations were unable to “clean up kosher meat production” because of the “inherent conflict of interest” with industry self-regulation. Government agencies “lacked adequate resources to do more than scratch the surface,” and communal institutions—which had previously been the primary force behind kashrut supervision—were hampered by “the American commitment to religious voluntarism and free markets,” which fostered a “persistent inability to establish centralized control over kosher meat production” (33).

In Lytton's view, the industrialization of food production that exploded in the mid-twentieth century created an environment that supported effective third-party supervision because mass production allowed the cost of that supervision to be spread across a sufficiently large number of units that any increase in unit cost would be minimal and likely not passed onto the consumer at all, since the consequent increase in sales to kosher consumers would likely more than cover the full expense of supervision. Indeed, Lytton notes that kosher consumers are disproportionately located in large urban areas, and since an increase in market share would improve a product's placement on store shelves, third-party kosher certification in key urban markets will significantly increase sales among other consumers as well.

Further, industrialization has helped to combat some of the infighting and turf wars that plagued kosher supervision earlier in the century and caused consumers to lose confidence in the entire system. Processed food products contain many different ingredients from multiple sources. For the supervisor of the end product to certify that the food is kosher, he must be confident that each of the upstream ingredients is kosher. Since it would be logistically impossible for a single organization to independently supervise each element of every ingredient, the third-party certification organizations must develop some degree of comfort with each other's certifications. This détente, according to Lytton, forces greater professionalism and dampens rabbinic rivalries, with the overall effect of increasing consumer confidence in the certification process as a whole.

Lytton acknowledges some failures in the contemporary third-party certification system. For example, he provides evidence that the Orthodox Union (OU) hoodwinked companies to purchase completely unnecessary kashrut certifications for nonfood products such as soap—certification that costs the OU very little to provide—in order to subsidize more costly certifications, such as for meat and matzah. Despite this, Lytton generally assumes that the major contemporary third-party certification agencies today work in good faith, sharing a “a sense of religious mission that supports each agency's efforts to maintain the reliability of its kosher certification” (66). In one particularly uncritical passage, Lytton opines that “for the rabbis who manage certification agencies and their mashgichim,” their work represents “a way to serve God and the Jewish people—a sacred trust” (134).

Lytton is at his best when he acknowledges that consumer vigilance is central to ensuring that food is kosher. Where consumers do not tolerate petty rivalries, certification agencies are compelled by market forces to transcend those rivalries. Where consumers demand an overhaul to lax supervision standards or a retreat from gratuitously strict standards, certification agencies must either correct the problem or provide a compelling justification for maintaining the status quo. Maybe most importantly, financial pressures on certification agencies to “cut costs by lowering standards” can be “counterbalanced by a core of vigilant consumers who generate, monitor, and disseminate reputational information that would discourage brand-sensitive private auditors from cutting corners” (146). Ultimately, Lytton is likely correct that a mix of consumer activism, industry buy-in, third-party supervision, and government regulation can force positive change in areas of food production and labeling well beyond kashrut.