How Would the Congressional Review Process Take Place in the Common Law Initiative?


The President and/or the Congress would request that the Administrative Conference of the United States (ACUS)  develop a recommended game plan for Congressional review of  a select number of common laws.  The common laws of interest are those that ACUS has identified as meeting a well defined list of qualifying criteria which focus on perceived shortcomings in judge-made laws which inhibit the effective management of the administrative state. The plan would also include  procedures recommended for conducting the said review.

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.