Abstract

In After the Rights Revolution, Cass Sunstein confronts the “Chicago” intellectual tradition on the effects of government regulation. While recognizing the many failures of regulation, Sunstein argues that most regulation serves a potentially useful purpose and that the courts can be relied on to correct the worst regulatory failures. He offers a dizzying array of prescriptions to ensure this outcome, many of which would appear to run afoul of clear congressional intent. In a more recent book, Breaking the Vicious Circle, Stephen Breyer offers a different diagnosis. He sees health‐safety‐environmental regulation as essentially out of control because of the “vicious circle” created by irrational and ineffective government responses to the public's concern about the risk of exposure to carcinogens. Breyer does not believe that this vicious circle of excessive and irrational regulation can be broken by the courts. Instead, he suggests the creation of an elite bureaucratic corps with the mission of proposing more effective and less costly approaches to controlling threats to human health.