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.

It is envisioned that ACUS would institute, on an ad hoc basis, a broadening of the educational and employment backgrounds  of  its program participants. These program participants would not be members of ACUS but would provide for a multidisciplinary review of issues which would include individuals with a degree in economics, history, political science, public policy or pubic administration. The aforementioned participants would be accompanied by a substantial increase in the number of  participants who are  legal practitioners in contrast to  legal academicians. ACUS members could participate in the discussions but would have no authority to make a motion or to exercise a  vote until which time ACUS in its entirety address the resultant recommendations.

To assist ACUS in launching this new responsibility CRE suggests that it establish an Ad Hoc Interagency Working Group. The said Group would include both ACUS members and personnel who  presently are not associated with either ACUS  or the US Government and would be charged with the delivery of the work product defined herein for consideration by the ACUS membership.  Based upon CRE’s   multi-year  outreach program coupled with its supporting analyses,  a  good starting point is to address the issues associated with Shadow Dockets and Standing as set forth on this page .

ACUS would forward its final recommendations to the Congress at which time the retrospective review of select judicial decisions would occur.

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