The Old Regime and the Loper Bright Revolution

A New Paper on SSRN

The Loper Bright commentary will continue until morale improves. It will doubtless take the legal community decades to fully digest the decision and its consequences, just as it did for the preceding Chevron regime. In a new paper on SSRN, I argue that Loper Bright and the “anti-administrative revolution” generally will end up largely recreating the principles and doctrine of the prior regime, albeit under new labels and forms — in a manner analogous to Tocqueville’s analysis of the relationship between the ancien régime and the Revolution of 1789. Indeed, this process is already underway, both in the decision itself and in recent caselaw from the lower courts, issued after the decision. Plus ça change, plus c’est la même chose. (For a different, not incompatible, and genuinely excellent application of a different strand in Tocqueville’s thought to administrative law, see a book by Dan Ernst called “Tocqueville’s Nightmare” — one of my favorite big-picture analyses of the development of the administrative state in the U.S.).

The abstract is below and the link is here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5049347. Hope you enjoy!