WHAT WOULD A WORLD without Chevron deference be like?
The Federal government will stop making regulations that are treated like they are laws. REGULATORS, STOP MAKING LAWS!
WHAT WOULD A WORLD without Chevron deference be like? One of the oddities of last month’s oral arguments before the US Supreme Court was that the parties advocating for the justices to overturn the power of federal agencies to interpret ambiguous laws, and those defending Chevron, both argued that their preferred outcome would create more consistency across the legal system. Clearly, something’s gotta give between those two viewpoints.
A decision that further diminishes the bedrock administrative law principle or jettisons Chevron entirely is likely to trigger a crushing workload for federal judges and inject extreme uncertainty into the agency rulemaking process, Suzanne Monyak reports. Read More
Chevron‘s demise would create ballooning caseloads for judges overseeing disputes involving technical rules in areas like environment and finance. If the ruling is retroactive, it would likely prompt an onslaught of requests to reopen litigation. Justice Sonia Sotomayor said at argument that some 17,000 cases rely on Chevron.
Several former judges predicted a decision against Chevron would lower the bar in some cases for the US to lose in court, a reality that would prompt more legal challenges to agency action. And it could lead to larger records in administrative law cases, making each one more labor-intensive, they said.
More Splits? Overturning Chevron also could spur greater division between appellate courts. “You will get circuit splits,” said Paul Grimm, a former federal judge in Maryland and current director of the Bolch Judicial Institute at Duke Law School. “This is not going to settle litigation so it doesn’t continue. It’s going to result in an uptick, and whether that’s a flood or just a heaping helping remains to be seen.”
The Flip Side: Businesses challenging Chevron contend that scrapping the landmark 1984 precedent would provide greater certainty by preventing agencies from vacillating between different regulatory interpretations of ambiguous law. “Chevron is really a reliance-destroying doctrine,” attorney Roman Martinez, representing challengers in one of the cases, said during argument.
Paths for Business: Porter Wright’s Brad Hughes writes in a Bloomberg Law Insight that he debated the what-comes-next question with colleagues and reflected on what it might mean for his business clients. His conclusion: It may not mean as much as some think. Read More
Columnist’s Take: If Congress Worked, Chevron Doctrine Wouldn’t Exist: Clive Crook
BIG LAW firms are racing to establish themselves in Saudi Arabia, while at the same time law offices are closing up shop in China. One is a case of a potentially lucrative market opening to outside legal work; the other is part of broader fallout over slowing economic growth and declining foreign direct investment.
Hot on Saudi Arabia: At least 30 multinational law firms have opened branches in Saudi Arabia in the past nine months or have applied for the right to do so, Mahira Dayal reports. Some are entering the marketplace for the first time, while others seek to capitalize on new rules allowing them to create their own practices in the country without the constraints of a local partner.
There are indeed challenges, including complying with the kingdom’s strict rules—such as requiring new firms to have 70% Saudi national lawyers and at least two partners living in the country. And then there’s the potential for backlash related to human rights concerns, something London-based Simmons & Simmons has already faced. Read More
Cool on China: Five US-based firms have closed at least one China office since 2020, and data from the Chinese Ministry of Justice reveals a trend of fewer foreign law firms operating offices in the country, Kazuhiko Shimizu reports. US firms face rising competition from Chinese law firms, record-low loan growth in China, and the difficulty of navigating the ever-changing geopolitical struggle between Beijing and Washington.
‘Loss Leaders’: Most Western law firms don’t make a profit in China and are either “loss leaders” or there for visibility, said Robert C. Bata, principal at advisory firm WarwickPlace Legal. He predicted few US law operations will be drawn to China in the future. “If things continue as they are, more middle-tier American law firms—especially ones with significant industrial client bases—will reduce their presence in China,” he said. Read More