Kristin Hickman, Dick Pierce, and I just finished the 2024 summer update to our federal administrative law casebook. As part of that process, we spent a fair amount of time discussing and structuring how we are going to teach statutory interpretation in our administrative law courses–at least for now—after Loper Bright eliminated Chevron deference. We included our thoughts in our summer update, which you is available here.

I’m reproducing our recommended restructuring from the summer supplement:

“Chevron is overruled.” With those words in Loper Bright Enterprises v. Raimondo, Chief Justice Roberts for the Court completely upended how we teach judicial review of agency interpretations of statutes. We offer an excerpt and teaching notes for Loper Bright [in this summer supplement]. In addition, we recommend teaching judicial review of agency interpretations of statutes using the textbook as follows:

Assignment 1: The Pre-Chevron Approach (NLRB & Hearst Publications; Skidmore v. Swift & Co., pages 721-738).

The Court in Loper Bright spoke favorably of both Hearst Publications and Skidmore as exemplars of the traditional approach to judicial review of agency interpretations of statutes. Consequently, these two cases not only reflect the pre-Chevron past but also foreshadow how lower courts may address future cases. Likewise, the short essay on Skidmore after United States v. Mead Corp. may shed some light

Assignment 2: The Chevron Revolution (Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., pages 738-747; National Cable & Telecomm. Ass’n v. Brand X Internet Services, 870-881)

Obviously, Chevron kicked off forty years of significant jurisprudence governing judicial review of agency statutory interpretations. Students need to know about it, and Loper Bright will make no sense if they do not. Much of what came after (and is covered at length in Chapter 6) can be addressed in a brief lecture. We suggest Brand X because, in our view, the holding of that case, by allowing agencies to reverse decisions of the courts of appeals, was a critical driver of the push by several justices to overturn Chevron.

Assignment 3: Chevron Is Overturned (Loper Bright Enterprises v. Raimondo, excerpt [in supplement]; The Modern Skidmore Doctrine, pages 869-870)

We will be analyzing the meaning and consequences of the Loper Bright decision for years to come. The essay on Skidmore as applied by the lower courts after the Supreme Court’s 2001 decision in United States v. Mead Corp. may offer some insights regarding how those courts might approach at least some judicial review of agency interpretations after Loper Bright.

Assignment 4: Major Questions Doctrine (Intro to the topic and West Virginia v. EPA, pages 911-912, 915-938, skipping the excerpt from King v. Burwell; include also the discussion of Biden v. Nebraska contained in this supplemental memo)

It seems likely to us that major questions doctrine will continue to influence judicial review of agency interpretations of statutes.

(Potential) Assignment 5: Kisor v. Wilkie and Auer Deference

Although Kisor v. Wilkie, governing judicial review of agency interpretations of agency regulations, is only a few years old, it is unclear at this juncture what the impact of the reasoning of Loper Bright on Kisor’s several steps will be. The material in Chapter 6.G. on this topic could be a fifth assignment, or you might choose to skip this material until we gain greater clarity.