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- Title
Lower Courts After Loper Bright.
- Authors
Schultz Bressman, Lisa
- Abstract
This Symposium contribution will offer a prediction: If Loper Bright Enterprises v. Raimondo overrules or ousts Chevron, the decision may have less practical effect in the lower courts than we might expect. In most cases, reviewing courts will continue to ask whether the relevant statutory language has a clear meaning that precludes the agency's interpretation or requires another, using the same interpretive tools and methodologies that they have before. When courts find no clear meaning, they will ask whether the agency's interpretation should prevail in basically the same manner as they always have. The more specialized an interpretation, the more likely courts will be to agree with it. Although courts will not always give controlling weight to the agency's interpretation, they are still likely to do so when it matters most: when the interpretive dispute amounts to a policy disagreement. In such cases, judges may feel conflicted substituting their judgment for that of the agency, as both Chevron and State Farm have long warned against. They may begin treating agency interpretations as policy decisions and applying State Farm, rather than deciding the underlying questions themselves. Courts did not have to think much about the choice between Chevron and State Farm while both pointed toward deference, and they may have defaulted to Chevron whenever statutory language was involved. But after Loper Bright, courts will feel the weight of this choice. It may be the difference between de novo review and arbitrariness review, judicial judgment and judicial deference, and judicial responsibility and agency authority. If courts respond by using State Farm, they will moderate the effect of Loper Bright for any number of agency interpretations to which Chevron formerly applied.
- Subjects
LEGAL liability; JUDICIAL deference; LAW &; fact; OBEDIENCE (Law); DELEGATION of powers
- Publication
George Mason Law Review, 2024, Vol 31, Issue 2, p499
- ISSN
1068-3801
- Publication type
Article