Crises, Congress and Cognitive Biases: A Critical Examination of Food and Drug Legislation in the United States

November 2009

64 Food and Drug Law Journal 599-630 (2009).

At the turn of the century, newspapers across America carried reports of a handful of infant deaths in St. Louis linked to contaminated diphtheria vaccine. Congress responded to the resulting outcry with the Biologics Act of 1902, inaugurating a century of food and drug “crisis legislation.” This article explores the history of Congressional responses to high-profile safety events in the area of food and drug law, from the Biologics Act to the Food and Drug Administration Amendments Act of 2007. It suggests that this pattern may be seen as an example of what Justice Stephen Breyer has labeled the “vicious circle”: a pernicious feedback loop linking public misperception, legislative overreaction, and regulatory irrationality. But the article also argues that these findings may fit a more sympathetic paradigm, and that the refrain of crisis and response might be viewed as a natural, unavoidable, and even beneficial facet of legislative evolution.


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