Edward B. Shils Professor of Law and Professor of Political Science Cary Coglianese has published one of the first print law journal articles analyzing the U.S. Supreme Court’s watershed decision in Loper Bright Enterprises v. Raimondo, which last year overturned the four-decade-old Chevron doctrine and sparked intense debates over the future of administrative law.
The article “The Great Unsettling: Administrative Governance After Loper Bright,” coauthored with Professor Daniel E. Walters of Texas A&M University School of Law, appears as the lead article in the latest issue of the Administrative Law Review.
Coglianese and Walters note that three key words—“Chevron is overruled”—“surely captured more attention than any others in the Supreme Court’s thirty-five-page opinion.”
A chorus of scholars have offered confident predictions about how Loper Bright will shape the future of administrative governance—some argue it portends dire consequences, while others say it will make no difference. Yet Coglianese and Walters offer a note of scholarly caution. They explain why the ruling’s long-term effects remain uncertain—an uncertainty driven by the complex web of institutional politics that surrounds the work of administrative agencies.
“The complex organizational politics of administrative agencies—affected by both internal and external factors—makes predicting their organizational behavior generally beyond reach,” Coglianese and Walters write in their article.
They suggest that Loper Bright might best be considered “something of a Rorschach test inside a crystal ball”: people can see different things in it, especially when envisioning what comes next. “What they see,” Coglianese and Walters write, “may reflect more of what they are primed to see by their own cultural or ideological predispositions than by an underlying, confirmable reality.”
Still, Coglianese and Walters offer four major pathways that administrative governance might take in the wake of the decision. In illuminating these ways that administrative law may move forward, Coglianese and Walters take an interdisciplinary approach, using ideas from game theory, political science, sociology, and anthropology to shed light on the complex forces influencing legal and policy outcomes. These perspectives help illuminate how courts, agencies, Congress, and interest groups may respond to the disruption of a nearly forty-year jurisprudential equilibrium.
“Loper Bright has shaken up the legal landscape—much like we can feel an earthquake when it literally shakes up the ground beneath our feet,” Coglianese and Walters observe. “But just as with real earthquakes, it will take time to assess what the full impacts of the Court’s legal tremors have been—and on which particular structures.”
In addition to mapping a range of plausible scenarios—from sweeping changes to modest shifts or legal inertia—the article probes a more profound question: whether the full effects of Loper Bright can ever be conclusively measured. Coglianese and Walters point to how a new administration is changing administrative policies and practices, which will only complicate any future empirical assessment of what effects Loper Bright may engender.
“Despite the overall uncertainty,” Coglianese concludes, “lawyers and legal scholars can gain from our analysis, learning to embrace the uncertainty while also remaining attentive to how the future may unfold. This is, after all, an inherent mindset that successful lawyers have always needed.”
With its blend of analytical rigor and broad interdisciplinarity, The Great Unsettling offers insights and lessons for all readers on understanding the possible effects of dramatic jurisprudential shifts.
Original source can be found here.