The Federal Financial Forum

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).

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.

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 of our schools, ranging from hiring extra guards to installing metal detectors.

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.

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.