Book Note Breaking the Vicious Circle: toward Effective Risk Regulation

Judging by the hostile reaction Stephen Breyer's book, Breaking the Vicious Circle, received at his Supreme Court nomination hearings last July, one might think Breyer had proposed the abolition of democracy itself. Calling Breyer "presumptuous and elitist," Senate Judiciary Committee Chairman Joseph Biden told Breyer derisively that he was "delighted that as a judge you won't be able to take your policy prescriptions into the court. "2 Although it is inexplicable why the liberal senator was so confident that Supreme Court justices are unable to impose their policy preferences from the bench, why were Biden and the Ekes of Ralph Nader so upset with Justice Breyer's book? At first glance, Breaking the Vicious Circle seems innocuous enough, recounting numerous tales of how quixotically and inefficiently our nation attempts to regulate small risks. Based on Breyer's 1992 Oliver Wendell Holmes Lectures at the Harvard Law School, the book ,nderscores the difficulty of reconciling scientific analysis with political pressures in a world of rapidly changing technology and newfound risks. Breyer cites, for example, the cleanup of a toxic waste dump in New Hampshire where an extra $9.3 million was spent to increase from 70 to 245 the number of days per year it would take for children to be harmed if they ate dirt daily from the site. This may not seem altogether unreasonable until one learns that no children ate (or were likely to ever eat) any dirt on the swampy site. Moreover, everyone involved agreed that more than half of the volatile chemicals would have evaporated by the year 2000 (p. 12). Likewise, consider the wide variation in the amount of society's resources that different regulatory programs are willing to spend to save