What is Common Law and Why Should Congress Review It?

What is Common Law?

Wikipedia states:

In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions.

The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision (a principle known as stare decisis).

Judge-Made Law at its Worst

Elementary administrative law states that (1) the denial of a petition is a final agency action and (2) final agency actions are judicially reviewable.

The Congressional Research Service declares:  “706(2) of the APA states that courts can review and set aside final agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”. Also see A CLOSER AND MORE CURRENT LOOK AT THE “INFORMATION QUALITY ACT,” ITS LEGISLATIVE HISTORY, CASE LAW, AND JUDICIAL REVIEW ISSUES.

Parental Accountability in School Shootings?

The Center for Regulatory Effectiveness (CRE) has followed the regulatory implications of school shootings for years. In a nutshell our attention has been given to the corrective actions recommended or implemented after each tragedy. The common remedy is more regulation.

The question we raise is what alternatives are there to additional regulation, such as, holding parents accountable for the actions of their children?

ABC news initiated a discussion forum immediately after the  horrible event in Michigan. There were in excess of 2000     comments. The CRE post was ranked 1st for content which is available on You Tube. [ You  may have to scroll down a dozen links through videos to the CRE post.]

The Other Side of the Coin

Other posts on this website chronicle the contributions our organization has made to the management of the administrative state.

These contributions have to be augmented by our failure to exercise a unique opportunity to address the issue of the century.

In the early seventies, the Quality of Life Review designed and implemented by the Nixon Administration, placed OMB in a central position to delineate the environmental issues to be addressed with the necessary resources.

One day, in the early seventies, we received a call from a NASA scientist. He explained that he was going out of the chain of command but would like to visit on non-government  time, Saturday, to discuss a very contentious  issue.

Why The Congressional Review of Common Law in Lieu of Regulations?

The literature is replete with the need for Congress to review regulations. Among the many arguments advanced in support of this idea is that Congress has delegated too much authority to regulatory agencies and  the Congress must act to address the shortcomings in regulations promulgated by regulators. Nonetheless it appears that it is unlikely that the Congress will  have the resources  to review the aforementioned regulations.

Even if the Congress were only to review the most cosmic regulations, at best they are reviewing a very small piece of the regulatory pie.  On the other hand if the Congress were to review  the legal doctrines inherent in common laws they would then be addressing policies which cut across a wide range of agencies and issues.