The Academy has performed an excellent job on publicizing the shortcomings inherent in the Major Questions Doctrine; the web is replete with scholarly articles on its shortcomings. However the record is short on solutions to the problem. To date the solution provided by the Academy is based upon applying the Congressional Review Act to the MQD. The problem is that this solution requires the enactment of two major pieces of legislation: (1) enactment of legislation expanding the jurisdiction of the CRA, and (2) the passage of legislation applying the revised CRA to the MQD.
Why has the Academy been silent on the Common Law Initiative which allows an immediate intervention by the Executive Branch?
Numerous discussions with members of the Academy were not forthcoming but reading between the lines two possibilities emerge:
- The Academy is the de facto regulator of SCOTUS in that all members of the court, including their law clerks, have been schooled by a member of the Academy and it is not unusual for both judges and law clerks to read articles written by their law professors; furthermore some believe that one could jeopardize their professional reputation by supporting a strategy that provides for a possible laceration that previously was considered audacious.
- The Common Law Initiative was authored by a person who is not a member of the Academy, recognizing however that a member of the Academy has addressed this generic concern in a journal article titled Jazz Improvisation and the Law: Constrained Choice, Sequence, and Strategic Movement Within Rules,2023 23 U. Ill. L. Rev. 151-224 (2023) [WWW] [Gtown Law] [W] [L] [SSRN] “This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation.”
No more needs to be said; the collective record is “all hat, no cattle”, a result of giving undue recognition to arguments, offered without any substantiation whatsoever, that the recommended treatment might be worse than the underlying disease.