Congressional Review of Judicial Opinions: Reaction of the Legal Community

From: Jim Tozzi
Sent: Friday, July 8, 2022 8:19 AM
Subject: Reaction of the Legal Community to the Common Law Initiative

Mr. Brown I offer the following in response to your recent article.

I was instrumental in establishing the regulatory review office, OIRA, in the  White House Office of Management and Budget. I have prepared the following in response to questions raised about the Court’s ruling on Roe v. Wade.

 What is the Reaction of the Legal Community (Academy) to the Common Law Initiative?

The reaction of the Academy to the Common Law Initiativewhich 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) In the worst case replacing the views of appointed political figures, who are Senate confirmed, with the views of elected political figures is hardly a step forward.

(4) The Common Law Initiative will vanish with the passage of time because of the non-presence of the Academy.

(5) Congress has more than a full plate of work before them and work on the Common Law Initiative would be a distraction.

Jim Tozzi

Center for Regulatory Effectiveness 





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