Breaking the Vicious Circle: Toward Effective Risk Regulation

by Stephen G. Breyer

Breaking the Vicious Circle is a tour de force that should be read by everyone who is interested in improving our regulatory processes. Written by a highly respected federal judge, who would go on to serve on the Supreme Court, and who obviously recognizes the necessity of regulation but perceives its failures and weaknesses as well, it pinpoints the most serious problems and offers a creative solution that would for the first time bring rationality to bear on the vital issue of priorities in our era of limited resources.

Genres: Law, Nonfiction

144 pages, Kindle Edition

First published January 1, 1993

About the author

Stephen Gerald Breyer is a retired Associate Justice of the U.S. Supreme Court. Appointed by Democratic President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court.

Following a clerkship with Supreme Court Associate Justice Arthur Goldberg in 1964, Breyer became well-known as a law professor and lecturer at Harvard Law School starting in 1967. There he specialized in the area of administrative law, writing a number of influential text books that remain in use today. He held other prominent positions before being nominated for the Supreme Court, including special assistant to the United States Assistant Attorney General for Antitrust, and assistant special prosecutor on the Watergate Special Prosecution Force in 1973.

In his 2005 book Active Liberty, Breyer made his first attempt to systematically lay out his views on legal theory, arguing that the judiciary should seek to resolve issues so as best to encourage popular participation in governmental decisions.

Reviews

[Lance Cahill · Rating 4 out of 5]

This book was written neatly 30 years ago, but the themes are ever relevant and ever concerning. Regulatory agencies are often inconsistent in their focus, approach things in haphazard manner, and are too risk averse or do not sufficiently consider cost/benefit. The track has seemed to improve with a more robust OIRA process, but the FDA and CDC’s response to COVID-19 highlights these concerns: conflicting communication regarding use of masks; significant delays in approval of rapid testing devices; delays in approval of vaccines; start-stop approach to evaluating vaccine efficacy without clearly communicating their benchmarks of success.

The book covers the conceptual area fairly well with a particular focus on regulatory treatment of toxins.

Book falls flat in the end as the discussion of the problem is more interesting and enlightening than the potential solution. Themes of delegation and the power of the administrative state are ever present today, making this a relevant and informative book.

[Ryan Kadet · Rating 3 out of 5]

Great sample of concise writing (80 pages) that effectively explains the complicated issue of regulating health risks and Breyer’s proposed solution. I also liked how he was able to write this in his own voice while still incorporating many sources and maintaining an air of credibility.

The most interesting idea was how government agencies require a level of prestige to work well, and the book discusses how an agency focused on efficiency in risk regulation would need to achieve enough prestige to break out of the circle of public opinion and congressional agenda setting.

[Lightreads · Rating 3 out of 5]

I'm snowed in and I have galloping bronchitis, so naturally I read Justice Breyer on risk regulation. Like you do.

A tiny, non-technical, non-legal book about improving the spotty and inconsistent U.S. record on risk regulation, particularly toxins and carcinogens. Breyer is lucid and readable as he sketches out the common problems at a basic level – dueling regulatory regimes, the last mile problem, etc. – and how to fix them – a new system more scientific and centralized than what OIRA does now. Relevant and accurate even after fifteen years, and worth reading, because this is stuff a lot of people don't know about. But if you're like me and you've read all the more technical, more legalistic stuff – Graham, Sunstein, Calabresi, etc. – this adds nothing new and actually passes very lightly over issues like why spending money to save lives often costs lives in other arenas.

[Erika · Rating 4 out of 5]

What a perfect little book. It should be required reading for all adults. I do not fully agree with his solutions, but parts 1 and 2 are tours de force.