With apologies for the delay in between postings, we’re back! Today’s Ad Law Reading Room entry is “The Great Unsettling: Administrative Governance After Loper Bright,” by Cary Coglianese and Daniel Walters, which is forthcoming in the Administrative Law Review. Here is the abstract:

“Chevron is overruled.” These three words surely captured more attention than any others in the U.S. Supreme Court’s thirty-five-page opinion in Loper Bright Enterprises v. Raimondo. For forty years, the Chevron doctrine had been virtually synonymous with administrative law. Now that the Court has taken a step that many scholars thought unfathomable even just a few years ago, speculation abounds about the possible downstream impacts of Loper Bright on both what agencies will be able to do in the future and how lower courts will respond when reviewing agency action. The vast majority of early expert commentaries suggest major changes to the future of administrative governance. This article aims to put this early prognostication into perspective. We explain why it is difficult to know whether or how much Loper Bright will matter at this time, if we will ever really be able to tell. Both as a legal text and as an intervention into the complex web of institutional politics that constitute administrative governance, Loper Bright contains ambiguities that significantly cloud the picture of the future. In fact, the decision might best be thought of as something of a Rorschach test inside a crystal ball: different people can see different things in it, especially when they try to envision what comes next. And what they see may reflect more of what they are primed to see by their own cultural or ideological predispositions than by an underlying, confirmable reality. That is not to say that Loper Bright has not changed nor will not change administrative law. Nor is it to say that it will not have influential effects on the future practice of administrative governance. Rather, it is to say that predictions about the decision’s impacts cannot be made with anything approaching precision or certitude. We know that 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. 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. Rather than make any definitive predictions about Loper Bright’s unsettling consequences, lawyers and scholars alike would do well to be attentive to the multiple ways that Loper Bright may (or may not) shape the future of administrative governance. We suggest here some of those possible ways and explain why it is so difficult to predict Loper Bright’s precise impact on future administrative governance—a conclusion that may itself prove to be as unsettling as the overturning of a forty-year-old precedent itself.

“The Great Unsettling” is indispensable—not because it gives us the answers to Loper Bright’s mysteries (though my students would appreciate that), but because it resists the very idea of doing so. What makes predicting Loper Bright’s effects so difficult, the authors argue, is the fact that the Court’s doctrinal reconfiguration is but one part of a broader game involving various institutions, interest groups, and the public at large. Indeed, perhaps the only thing that is predictable is that we’re in for a period of uncertainty. Coglianese and Walters deftly weave together insights from a broad range of literatures, while never sacrificing readability. The result is a powerful challenge to scholars and others who project clairvoyance regarding the future path of administrative law.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.