The Great Unsettling: Administrative Governance After Loper Bright

“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 Class Certification of Exchange-Listed Options in Securities Class-Action Litigation

Class-action litigation for fraud on the market typically focuses on purchasers and sellers of stock. Yet those that bought and sold options on the shares can likewise be harmed. Drawing from experience in In re Apple, Inc. Securities Litigation (N.D. Cal. 2022), the authors describe the issues related to including options traders in a certified class. This article explains how to overcome the obstacles to certifying an investor class that includes buyers and sellers of option

Absolute Priority, Relative Priority, and Valuation Uncertainty in Bankruptcy

Bankruptcy reformers advocate substituting relative priority for the prevailing absolute priority standard to promote a more consensual restructuring process. In deciding who does and does not get paid when there is not enough value to pay all creditors, bankruptcy’s prevailing absolute priority rule lines creditors up in rankorder, compensating highest ranking creditors in full before lower-ranking creditors get anything. By contrast, relative priority would account for the possibility that the firm could recover and become more valuable after the bankruptcy. Relative priority would compensate lower-ranking creditors for that chance of the debtor turning around, thereby reducing both their incentive to delay and seniors’ incentive to rush. Relative priority could have these and other potential advantages, but we show here that it would also introduce valuation difficulties. Valuation difficulties are important because under both priority rules the parties have the Coasean incentive to come to a deal that maximizes the total value of the firm, and then split that maximized value; indeed, we show that the absolute priority conflict structure that relative priority seeks to mitigate could readily reemerge under relative priority. A more difficult valuation could make both a deal among the parties and judicial resolution harder. Absolute priority requires point-estimate valuations of the enterprise, like valuing equity of a non-indebted enterprise. But relative priority would require judges, parties, and outside investors to make complex valuations needing additional information, as relative priority valuation requires that decisionmakers assess the chances of multiple future outcomes with more precision than absolute priority needs. Worse, the increased valuation uncertainty from relative priority’s added complexity would discourage full-firm sales. Indeed, relative priority could recreate the bargaining problems afflicting absolute priority. Relative priority would, moreover, work poorly with today’s population of large business bankruptcies, which increasingly is made up of private firms, for which we show relative priority valuation would be particularly difficult. Today, financial professionals generally do not trade or offer for sale similar financial instruments: stock options requiring substantially similar valuation analyses exist for stable public firms, but rarely for distressed firms. True, relative priority could have other advantages over absolute priority. These advantages, however, must outweigh the costs we identify here: namely, that relative priority entails greater valuation uncertainty for the parties, the courts, and outside investors, leads to more valuation conflict than absolute priority, and, in this dimension, would increase bankruptcy’s cost

Recusal Reform: Treating a Justice\u27s Disqualification as a Legal Issue

This article addresses the pressing issue of recusal in the U.S. Supreme Court. It critiques the current practice of Supreme Court Justices deciding individually whether to recuse themselves from cases, highlighting the flaws and potential biases inherent in this practice. The authors advocate for a reform where initial recusal decisions are made by individual Justices but then are subject to review by the Supreme Court as a whole. The article offers several arguments to support this proposal. First, the authors explore the evolution of recusal laws, focusing on the significant amendments to 28 U.S.C. § 455 in 1948 and 1974. These amendments aimed to establish an objective standard for recusal, requiring judges to step aside when their impartiality might reasonably be questioned. Despite these changes, however, the authors point out that the current practice still problematically allows Justices to make unreviewable recusal decisions. Next, the authors conduct a comparison of the U.S. recusal process with those in other common law jurisdictions, revealing that many other nations have adopted collective decision-making for recusal issues at their highest courts. Finally, the authors delve into constitutional concerns, discussing whether the current self-recusal procedure violates due process by failing to guarantee an impartial tribunal. The article also addresses potential separation of powers issues, arguing that Congress has the authority to regulate judicial ethics, including recusal procedures, without infringing on judicial independence. The article concludes that reforming the recusal process is crucial for maintaining public trust in the judiciary. By treating recusal as a legal issue to be decided by the full Court, rather than as a personal ethical decision by individual Justices, the Supreme Court can uphold its duty to provide impartial justice and reinforce its legitimacy

Solving the Aggregate Liability Problem

Here is a familiar legal problem: First, a statute prescribes a damage award for each violation of its terms. Second, a plaintiff sues an individual or small business that has committed many minor violations of the statute. Third, the jury multiplies the defendant’s number of violations by the statute’s per-violation award, imposing an enormous aggregated judgment capable of bankrupting the defendant. Finally, the trial judge unilaterally reduces the jury award, calling it unreasonable or disproportionate to the defendant’s conduct. This dynamic may be a problem in the sense that the damage award is in fact unreasonably large. But it is also a problem in the sense that the judge’s decision to reduce the award subverts the clear terms of the statute. This Note is the first to canvas the tools used by federal district court judges to address this “aggregate liability problem.” It identifies six such tools: three constitutional tools (substantive due process, procedural due process, and the Excessive Fines Clause) and three non- constitutional tools (statutory interpretation, remittitur, and discretion in class certification). The constitutional tools, it argues, are legally suspect and unhelpful at addressing the problem. The non-constitutional tools, by contrast, are appropriate and useful in some circumstances. The Note concludes by considering measures Congress could take to resolve the aggregate liability problem at its source

Prosecuting Families

Hundreds of thousands of parents are prosecuted in the family regulation system each year. Their cases are investigated by family regulation agencies and prosecuted by lawyers employed by the government—family regulation prosecutors. Like police and prosecutors in the criminal legal system, this family regulation prosecutorial team wields immense power, particularly over race–class subjugated communities. Yet even as scholarship on criminal prosecutors and on the family regulation system has proliferated, the role of family regulation prosecutors has gone underexamined and undertheorized. This Article offers a critical examination of the role of these family regulation prosecutors. Drawing on a variety of primary sources, it establishes that there is no consensus approach to family regulation prosecution, nor a shared conception of the balance of power between agencies and prosecutors. The Article contends that the role of prosecutors in family regulation cases is uneven and undertheorized precisely because of the contradictions of the family regulation system itself, as a nominally rehabilitative but functionally carceral system. Once we recognize the family regulation system as carceral, a new, counterintuitive theory of family regulation prosecutions takes shape: prosecutors should be vested with independent discretion to serve as checks on agency overreach. But this is an interim measure. To protect families fully, we must move beyond choosing between models of prosecution and instead meet the needs of families outside any system of prosecution and punishment

Market Response to Court Rejection of California\u27s Board Diversity Laws

California mandated that firms headquartered in the state include women (SB 826) and underrepresented minorities (AB 979) on their corporate boards. These laws, passed in 2018 and 2020 respectively, were held to violate the state\u27s constitution by judges on the Los Angeles County Superior Court in 2022. This paper examines the market reaction to these surprising court decisions, finding that California firms appreciated significantly on the days of the rulings, and there is evidence that firms that were not in compliance with the laws exhibited larger abnormal returns than firms that were in compliance

Antitrust\u27s Forensic Tools

Most areas of law enforcement require investigative tools to provide evidence of violations and harm. Antitrust law’s single-minded focus on prices, output, and innovation explains its selection of economic tools. These tools were pro-enforcement and were embraced consistently by the Supreme Court, including proponents of scientific evidence such as Justice Brandeis

The Rare Earth Leverage? China\u27s Export Control Law and Xi Jinping\u27s Thought on Law-Based Governance

Since 2023, China has introduced a series of export restrictions on rare earth elements and other critical materials, citing national security concerns amid escalating geopolitical tensions and technological rivalry. While these measures have raised alarm over China’s strategic leverage in global supply chains, this article argues that their significance lies not merely in their economic impact but also in their legal form. Far from ad hoc economic retaliation, these restrictions reflect a broader effort to embed strategic statecraft within formal legal architecture. Anchored in the 2020 Export Control Law, China’s actions exemplify a broader turn toward law-based governance under Xi Jinping. In Xi’s conception, the law is not a constraint on state power but a political instrument of its consolidation and direction. By situating China’s export control regime within the ideological and institutional logic of “Xi Jinping Thought on Law-Based Governance,” the article examines its structural innovations, operational limitations, and strategic functions. It argues that China’s legalization of export controls is best understood as a strategic exercise aimed at enhancing central control, disciplining bureaucratic administration, projecting political legitimacy both at home and abroad, thereby translating governance objectives into a legalized framework that advances Party-state authority through the techniques and symbolism of the law

Programmable Money, Welfare State, and the Legal Construction of CBDC

The article explores the legitimacy of programmable money and the role of law in guaranteeing its legitimacy. Programmable money, with built-in payment conditions, provides a useful tool for implementing government programs such as social security and pandemic relief. The problem is that this programmable design feature may interfere with payment autonomy, especially if the programmable functions are placed into central bank digital currency (“CBDC”) which is legal tender. Such legitimacy concern is essentially a struggle between public and private powers in the mobilization of resources within a society. In pursuit of financial democracy and market freedom, the expansion of central bank power with digital money should be restricted. This is consistent with the idea that the creation of CBDC is largely for welfare state purposes rather than regulatory functions. To confirm this social political understanding, law is needed to define the programmable functions of CBDC. This will help maximize the benefits of governance efficacy while minimizing payment interference to be proportionate with the societal benefit. The law is critical in the construction of CBDC to promote inclusion, freedom, public interest, and social welfare. Specifically, the law should provide explicit rules for the sourcing, distribution, and use of programmable money to fund government initiatives. Permissible programmable functions include social security and emergency financial support, whereas prudential regulation measures and unconventional monetary policy instruments require further analysis. Transparency is critical in the design and operation of programmable money because it allows the public to observe the function and target of each sum, check its effects, and make informed decisions on CBDC holding strategies