The Congressional Review of Common Law in the Administrative State
Pathways to a Congressional and Multidisciplinary Review of Common Law
Recommendations for ACUS-Congressional Review
- Protect Democracy v. DOJ amicus curiae brief; Appendix ( Feb. 4, 2021);Docket
- How to Rein In an All-Too-Powerful Supreme Court
- Shadow Dockets: A Call for the Congressional Review of Judge-Made Law?
- Standing Law is Inconsistent and Incoherent
- Major Questions Doctrine
- The Case for Congressional Regulatory Review
- The Significance Accorded to Guidance Documents
- An Editorial on Standing
- Anticipated Adjudication: An Analysis of the Judicialization of the US Administrative State
- Judge-Made Law at its Worst
Options for the Future
- The Death of Common Law
- A Global Survey of Legal Academics
- Why the Congressional Review of Common Law in Lieu of Regulations?
*The initiation of legal actions to implement the positions set forth herein regarding school shootings might be inconsistent with existing tort doctrine. Consequently the actions outlined in the Common Law Initiative should be initiated at the earliest possible date.
Over the last century, the corpus of American law has expanded to encompass not only statutes but also court rules, state and federal administrative regulations, executive orders, international treaties, supranational conventions, common market legislation, and interstate compacts. Legal academics must stop pretending that we live and work in a common law legal system driven by judge-made law. Otherwise they do a disservice to their students as well as the bench and the bar. Indeed, a significant reason modern legal scholarship goes largely unread is that today’s scholars have lost sight of the needs of both jurists and the practicing bar in an increasingly complex and interconnected statutory domain.
We are contacting law professors who teach “Leg Reg” courses asking them to acquaint their students with the Common Law Initiative and to encourage their students to express their views on this page. The cohort of the US academic legal establishment which demonstrates an interest in exploring the possible implementation of the Common Law Initiative consists primarily of those whose age is either less than thirty or more than eighty with the notable exception of the participants in the Academia.edu program and the possible exception of those so noted in this publication. If it is decided to proceed with the implementation of the Common Law Initiative the following actions would be undertaken:
Implementation of a Process for Congressional Review of Judge-Made Law
(1) The President and/or the Congress would designate a governmental body, for example the Administrative Conference of the US, which would delineate one or more organizational and procedural options for identifying and proceeding with a Congressional review of select common laws, and
(2) The relevant committees of the Congress would conduct the aforementioned review, giving due consideration to the work product of Step (1) above, with considerable emphasis on multidisciplinary public participation. The ultimate product of the Congress would be legislative changes to address a modification of select common laws.
NB Lastly, three years ago we were under the impression that we had two separate and distinct projects underway:
- The Common Law Initiative: a program designed to have Congress participate in the establishment of Common Law, and
- School Shootings: a program designed to change the emphasis on addressing school shootings from the continued over regulation of schools to making parents responsible for the actions of their children.
Not in our wildest imagination did we ever believe that the two aforementioned projects would converge as a result of the presence of common laws which could limit the actions of prosecutors focused on holding parents accountable for the actions of their children.
Response to Media Inquiries
The Common Law Initiative is an exploration of the concept of having the Congress review the more significant common law doctrines promulgated by the judiciary because they did so with virtually no input from either the Congress or the Executive Branch. The following information is presented in response to the most frequently asked questions by the media.
• Academia.edu 24/7 Discussion Forum
The Birth of a Legal Doctrine in the Administrative State https://www.thecre.com/forum8/wp-content/uploads/2021/10/The-Birth-of-a-Legal-Doctrine-in-the-Administrative-State..-1.pdf
• The Congressional Review of Regulations or Common Law?• https://www.thecre.com/insurance/?p=3946
• Why are we interested in how Common Law is established in the US?
• The Common Law Initiative