Review Essay, A Square Peg in a Vicious Circle: Stephen Breyer's Optimistic Prescription for the Regulatory Mess
32 Harv. J. on Legis. 473 (1995)
With characteristically clear insight, Justice Breyer identifies several systemic problems that plague the regulatory process in the United States. He discusses how public (mis)perceptions, congressional (over)reaction, and technical (un)certainty create a "vicious circle" that increasingly undermines the legitimacy of the regulatory process. However, Breyer does more than merely criticize from the sidelines. He presents a thought-provoking proposal for the reform of the regulatory process that deserves full and fair consideration. This Review outlines the systemic problems and the "vicious circle" identified by Justice Breyer and then proceeds to review his proposed solution. The final part presents several criticisms of his proposal and concludes that, while Breyer's modest suggestions may help at the margin, they settle for tinkering with the system instead of giving it the overhaul it really needs.
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