Next Steps: Implementation of the Common Law Initiative

    November 26, 2021

Since the announcement of the Common Law Initiative several months ago a number of actions were taken.

The Common Law Initiative was promoted on the CRE website.

The aforementioned announcement resulted in hundreds of hits each day on the CRE website for nearly a week. Several weeks later it was announced on the SSRN ejournal, administrative law, which also resulted in a very substantial number of hits.

2.  What were the reactions to the Common Law Initiative?

A new Supreme Court case could gut the government’s power to fight climate change

Reprinted from Vox


The Supreme Court announced late last week that it will hear four very similar cases — all likely to be consolidated under the name West Virginia v. Environmental Protection Agency — which could prove to be some of the most consequential court decisions in recent US history.

That’s a bold statement, so allow me to explain.

The cases are the latest chapter in the seemingly never-ending litigation over the Clean Power Plan, arguably former President Barack Obama’s boldest effort to fight climate change. Though the plan was never implemented, it still exists in a zombie-like state. A federal appeals court decision revived the plan last January, but the Biden administration said in February that it would not reinstate Obama’s policy.

A Call for Papers

In response to your emails, Yes!.  We encourage our readers to send papers of interest that they have written or papers written by others which are line  with the Common Law Initiative.

Please send them to  they will be published on this page.



A Flood of Judicial Lobbying: Amicus Influence and Funding Transparency

ABSTRACT. This Essay explores how amicus briefs became a tool for coordinated judicial lobbying by dark-money interests. I show how current funding-disclosure rules for amici fail to provide genuine transparency—undermining fairness—and discuss reforms that could improve the judiciary’s amicus-disclosure regime and restore faith in the courts.

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Buyer Beware: The Federal Common Law of Successor Liability Can Create Unexpected Liability

The United States Court of Appeals for the Seventh Circuit recently issued a noteworthy ruling in East Central Illinois Pipe Trades Health & Welfare Fund v. Prather Plumbing & Heating, Inc. on the application of successor liability in federal courts.1 Federal common law successor liability is an exception to the general rule in virtually every U.S. jurisdiction that the buyer corporation (i.e., acquiror) in an asset sale transaction does not assume the seller corporation’s (i.e., acquiree) liabilities simply by acquiring ownership of the assets.2 Federal appellate courts, including the Third, Sixth, Seventh, and Ninth Circuits, have carved out an exception to this general rule and recognized that “when liability is based on a violation of a federal statute relating to labor relations or employment, a federal common law standard of successor liability is applied that is more favorable to plaintiffs than most state-law standards to which the court might otherwise look.”3

Common Law, Force Majeur and COVID -19

Editor’s Note:  The reach of the common law umbrella is vast and transcends our current emphasis on regulatory proceedings.

Common law perspective

For common law jurisdictions, there is no single definition of force majeure. The application of the doctrine is decided on a case-by-case basis.

When the contract is governed by a common law system, the courts will generally start from the presumption that parties are free to agree on all matters, which includes the freedom to agree to widen or narrow relief in force majeure situations. Generally, force majeure provisions are interpreted by focusing on the actual language used, with the result that each case rests on its own contractual language and set of facts.