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.

In a nutshell, historically academicians have focused on the problems associated with agency-made law; now is  the time to give comparable attention to the problems associated  with judge-made law.

It is for these reasons that CRE is recommending:

(1) That a neutral third party, such as the Administrative Conference of the US, delineate one or more processes  which another neutral third party could utilize  to review Common Law doctrines.

(2) Upon  choosing  a neutral third party  the said party would make recommendations to the Congress regarding legislation that should be enacted to address identified shortcomings in existing Common Law.

The bottom line is that we attempted for years to have law school curricula incorporate a multidisciplinary learning experience championed by a faculty with a diversity in views only to be ignored at every stage; it is time for us to return to our home court–the Executive Branch and the Congress,  but doing so will require that we  adopt a considerably more ambitious task: The Common Law Initiative.

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