How Law Professors Are Pivoting Post-Loper and Other Key Rulings

After the US Supreme Court upended the Chevron doctrine this summer, Northwestern Pritzker School of Law professor Daniel B. Rodriguez says the ruling will likely make the topic of judicial deference more interesting, not less, in his upcoming administrative law course.

The landmark decision in Loper Bright Enterprises v. Raimondo, which ended the longstanding doctrine granting court deference to reasonable agency interpretations of vague laws, prompted questions and a scramble to adapt in offices of the US government and across universities.

Rodriguez, who is the former dean of Northwestern’s law school, said he’s still in the planning phases for how he’ll approach teaching the subject in spring 2025 post-Loper Bright. The Chevron decision has always taken up a “big chunk” of his course syllabus, lectures and discussions throughout his more than 30-year teaching career.

“I will certainly emphasize to my classes that this is a significant event,” Rodriguez said. “There’s a lot we don’t know about the present and future state of judicial deference to agency interpretations.”

Rodriguez said it will take “many years” to know how the courts will rule with respect to deference. He pointed out the importance of precedent still standing under Skidmore v. Swift & Co., which holds that an agency’s rulings, interpretations, and opinions aren’t controlling on courts, but constitute a body to which courts and litigants may resort for guidance.

“We’re asking students to grapple with what’s the future going to look like, how lawyers will make arguments to courts, and what are some of the challenges that are going to now be faced in a world where Loper Bright is the governing precedent,” Rodriguez said.

The downfall of the Chevron doctrine quickly made waves across federal courts, with dozens of new lawsuits rooted in Loper Bright seeking to overturn agency decisions. And a pair of DC heavy hitters in administrative law, Covington & Burling and WilmerHale, recently told Bloomberg Law that Loper Bright will be at the forefront of their work going forward into the next presidential administration.

Read More: Leading DC Firms Play Long Game in Life After Chevron Ruling

Reading Lists in Progress

Brooklyn Law School Professor William Araiza says he’s left required readings in his administrative law class as “TBA.”

“Everything’s going to have to be organized around Loper Bright now,” Araiza said. Chevron deference “was a big deal to end my syllabus, where I’d talk about the substance of judicial review of agency statutory interpretation.”

Araiza, who is currently teaching an administrative law course, says the Loper Bright decision has differed from other landmark cases impacting his instructing since it “changes the entire subject.” He had a similar experience last fall in the aftermath of Students for Fair Admissions v. President and Fellows of Harvard College, which ended racial classification as a factor in college admissions and undid decades of affirmative action precedent.

The ruling in Students for Fair Admissions brought “kind of an anti-climax” to Araiza’s constitutional law courses, he said. For now, it gets to be the final word on the debate whether Equal Protection clause prohibits anti-classification or anti-subordination, Araiza said.

Doni Gewirtzman, a professor at New York Law School, went through a similar pivot process in the spring for his constitutional law course, where he installed Students for Fair Admissions into the curriculum, he said. Following his teaching philosophy of “not teaching bad law” rather than from a historical perspective, Gewirtzman looks to continue giving his students the tools they need to give to clients right now.

The race-based college admission precedents established under Regents of the University of California v. Bakke and Grutter v. Bollinger offered Gewirtzman — albeit sometimes challenging — examples of how the high court applied strict scrutiny tests to the topic, he said. But now he’s done away with teaching the cases in favor of looking at how the high court’s holding in Students for Fair Admissions may be applied to other areas of law, such as public employment and K-12 education.

“There are another range of questions about the extent to which this will extend to a range of different issues,” Gewirtzman said.

Check out other stories and commentary in our special report, The Balancing Act: Law Students Juggle Competing Demands.

Differing Approaches

Kent Barnett, dean of Ohio State University’s Moritz College of Law, said the ruling in Loper Bright essentially shaves off a week of course work in many administrative law courses. Barnett, who is a former administrative law professor, co-authored an amicus brief in support of neither party in the high court’s review of Loper Bright where he and University of Michigan Professor Christopher J. Walker defended Chevron .

Every administrative law professor at Ohio State’s law school is talking about the ruling, Barnett said, dubbing it the “key” topic of interest on internal listservs this fall.

Some professors “are spending quite a bit of time on these new cases, some are essentially ignoring Chevron and just kind of skipping over it, some are talking really going into the history of Chevron to talk about the reaction,” Barnett said.

The future of teaching administrative law remains “unknown” as Barnett estimates it will take three-to-five years for it to be clear how courts will approach agency authority post-Loper Bright, he said. He likened the ripple effect from this summer’s ruling to the 2022 ruling in Dobbs v. Jackson Women’s Health Organization, which overturned the federal abortion protections established in Roe v. Wade.

With the ever evolving landscape in both court rooms and law school lecture halls, constitutional law professors like the University of Michigan’s Richard Primus maintains an approach not heavily impacted by the most recent decisions of the Supreme Court, he said.

The goal for students in an introductory course to constitutional law “is to teach them the fundamentals of the system and to give them the tools they will need to learn more law in the future,” Primus said.

Primus said he’s spent less time teaching the cases in affirmative action’s line of doctrinal development to create time to talk about Students for Fair Admissions. But he said he hasn’t made a “big change” to his curriculum yet because a bigger one is “probably coming.”

“Most of the law that my students will practice hasn’t been made yet,” Primus said. “That means that I don’t react to every move the court makes — even if it seems like a great big move at the moment that it’s made — because sometimes it turns out to not be so important after a couple of years.”