The reaction of the Academy to the Common Law Initiative, which argues for the Congressional review of a select number of judicial decisions performed pursuant to a regime articulated by the Administrative Conference of the US, has been nearly non-existent.
CRE believes the list of possibilities for the absence of the Academy from the debate include the following which were compiled from casual conversations with the affected communities:
(1) The Congress is continually criticized for over-delegating authorities to federal agencies so it is difficult to oppose Congressional review of judge-made law.
(2) For Administrative Law scholars their academic existence is dependent upon the emphasis that the judiciary places on judicial precedent, therefore there is a reluctance to initiate an “open season” hunting expedition directed toward the written opinions of the judiciary.
(3) Given the high degree of partisanship in the Congress it might not be a step forward in replacing the views of appointed political figures, who are Senate confirmed, with the views of elected political figures whose domain is geographically limited.
(4) The Common Law Initiative could vanish with the passage of time because of not venting it with effected constituencies.
(5) Congress has more than a full plate of work before them and work on the Common Law Initiative would be a distraction.
CRE also notes that since the Academy’s demonstrated expertise is working SCOTUS, not the Congress, it may have to relinquish its center stage status, see SSRN Common Law Initiative