Public Participation

CRE Response to Public Comments on the Common Law Initiative: The Congressional Review of Judge-Made Law

                                                      A Revision

The Common Law Initiative differs greatly from proposals currently on the table to address troublesome court decisions.

1. The Common Law Initiative does not require legislation at its initiation. It has three discrete administrative modules.

➢ ACUS

➢ Database (judicial decisions)

➢ Nudge

2. ACUS: The strategy begins with the President or Congress directing ACUS to recommend procedures to  the Congress for the review of judicial decisions.

3. ACUS  responsibilities include the establishment of  a format that agencies would use to maintain a database of troublesome judicial decisions which would include supporting analyses of statements made therein.  In addition the database would have the ability to receive comments from the public including a  process which would allow the public to submit a petition for the inclusion of a particular judicial ruling into the database. By vesting the responsibility for the management of the database with the affected federal agency, programmatic oscillations resulting from leadership changes in either chamber of the governing body are minimized.

4. At the appropriate time a White Paper would be prepared with a finding that a particular judicial decision should be overturned; a Nudge.

• A nudge is of particular import if it is written with respect to a troublesome Circuit Court decision; see a  Succor for Chief Justice Roberts
• Nonetheless a nudge could also be published subsequent to a final decision of SCOTUS.
• The filing of a Request for Correction under the Information Quality Act would accelerate decisions within the Executive Branch.
• All of the above actions could be taken immediately and without the passage of legislation. The advantage of this strategy it that it allows actions to begin immediately instead of deferring action until legislation is enacted

5. A Nudge would be publicized by:

➢ distribution to the media

➢ presentations to leading members of the Congress

➢ meetings with Executive  Branch officials

➢ distribution to local newspapers

6. ACUS would delineate for Congressional consideration a number of legal actions that could be taken to address the issues raised in the aforementioned White Papers, ranging from  utilizing the Congressional Review Act to invalidating a judicial decision.

7. An open issue is whether or not the review of a judicial decision should be subject to a benefit-cost analysis.

8. In those instances where a Member of Congress decides that a Congressional intervention is warranted, the resultant action would be supported by the actions set forth in (5) above and conducted in accord with concerns expressed herein. At this stage a bill would be introduced to overturn a judicial decision using the aforementioned nudge as the basis for the action.

9. CRE is working on addressing the filibuster issue but it should be noted the aforementioned database and its attendant public attention:

➢ could decrease the number of filibusters

➢ could be funneled to the constituencies of those conducting the filibuster.

10.   SSRN Common Law Initiative