Liberty University Law Review

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Volume 20, Issue 3 (2026)Read More

Featured Content

  • Journal Article
    5 May 2026

    An Investigation of the Government’s Legal Strategy After Loper Bright

    Will Yeatman, Charles Yates
    For forty years, the Chevron “two-step” dominated judicial review of statutory interpretation issues in the administrative law context. Then, in Loper Bright Enterprises v. Raimondo, the Supreme Court ended Chevron deference. This Article investigates what comes next. Specifically, we explore how government lawyers have strategized in the wake of Loper Bright. Based on an original dataset of government briefs, we find that the government is advancing at least six substitutes for Chevron deference. Typically, the government combined two or more of these substitutes into an aggregated claim for Chevron-like deference. Our preliminary data suggests that courts have been skeptical of the government’s initial litigation strategy after Loper Bright.
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Current Articles

  • Journal Article5 May 2026

    Loper Bright: Big Deal or Same as the Old Boss?

    John Vecchione, Kara Rollins
    On June 28, 2024, forty years of judicial deference to an agency’s interpretation of silent or ambiguous statutes fell. The dethronement of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,1 “a decaying husk with bold pretensions,” by Loper Bright Enterprises v. Raimondo2 was heralded by the proclamation that “Chevron is overruled,” and its accompanying command that “[c]ourts must exercise their independent judgement in deciding whether an agency has acted within its statutory authority, as the [Administrative Procedure Act] requires.”3 The ruling was expected to upend the practice of administrative law. But more than a year after the decision, with Loper Bright and its companion case, Relentless Inc. v. U.S. Department of Commerce, still not adjudicated by any appellate court,4 and courts all over the country applying Loper Bright, has it been as transformative as its critics feared or as clarifying as its proponents hoped? Did the Court in Loper Bright leave too many avenues for continued adherence to a quasi-deference to the executive branch? With respect to future administrative actions (and challenges thereto), the Loper Bright decision can be understood to provide four functional considerations for agencies and litigants alike. First, Loper Bright left Skidmore “respect” in place without clarifying how that standard is construed or applied.5 It also kept in place a preference for administrative positions that were long-held or from the inception of the animating legislation.6 Second, it approved the delegation of discretion by statute to the executive branch when clearly expressed.7 Third, it urged the lower courts not to overturn regulations already approved under Chevron deference, i.e., statutory stare decisis remains post-Loper Bright with respect to case holdings made under the Chevron framework.8 Fourth, it grounded its reasoning on the statutory language of the Administrative Procedure Act (APA).9 After Loper Bright, a host of questions remain, and new questions are arising: How long-standing does an agency’s interpretation have to be to get the respect the Court alluded to in Loper Bright? When does a court know Congress has given discretion on a subject to an agency? How much stare decisis do circuits apply to their old Chevron decisions? And, what happens when a court reviews administrative actions that fall outside of the APA’s review provisions? Some commentators view Loper Bright as transformative,10 while others believe Chevron, whether called that or not, will always be with us.11 This Article surveys key decisions citing Loper Bright in the little more than a year since it was decided to tentatively answer these questions and to argue that in many cases and areas Loper Bright has been decisive and is performing as its proponents hoped. But teaching the judiciary new tricks is difficult and some courts have attempted to move on as if little had happened.
  • Journal Article5 May 2026

    Legal Conservatism and the Rise and Fall of Chevron

    Ryan Bangert
    Loper Bright Enterprises v. Raimondo marks a watershed moment in administrative law and conservative legal thought by formally overruling Chevron U.S.A. Inc. v. Natural Resources Defense Council and restoring judicial responsibility for resolving questions of statutory interpretation. This Article situates Loper Bright within the longer intellectual history of the modern conservative legal movement, arguing that Chevron deference emerged and was popularized, at least in part, as a conservative response to the perceived excesses of judicial activism during the Warren and Burger Court eras. While Chevron was initially embraced as a doctrine of judicial restraint that respected democratic accountability, it ultimately facilitated a dramatic expansion of administrative power at the expense of both Congress and the judiciary. The Chevron era also saw the rise of originalism and textualism, which provided independent checks on judicial adventurism. As administrative governance expanded and political accountability waned, conservative jurists increasingly deployed these tools to question whether Chevron had become incompatible with the Administrative Procedure Act and the Constitution’s separation of powers. These doubts culminated in Loper Bright, which rejects judicial abdication in favor of independent legal judgment grounded in text, history, and structure. Contrary to claims that Loper Bright signals a return to judicial activism, the Article contends that the decision reflects a recalibration rather than a repudiation of judicial restraint. Anchored in originalist methodology, the post-Chevron Court is positioned not to legislate from the bench but to restore constitutional boundaries among the branches. In this sense, Loper Bright represents a conservative correction to a prior institutional imbalance—one that reaffirms the judiciary’s role as a constitutional check while remaining faithful to the Founders’ design of limited and separated powers.
  • Journal Article5 May 2026

    Balancing the Triangle: Restoring Judicial Interpretation Without Ignoring Agency Expertise After Loper Bright

    William Burner
    For nearly forty years, Chevron required courts to defer to an agency’s reasonable interpretation of an ambiguous statute, even when a better reading was available. This approach undermined the role of the judiciary and disrupted the separation of powers. Rather than interpreting the law, courts became second to the Executive Branch in determining what statutes meant. Congress contributed to the problem by drafting vague laws and depending on agencies to resolve the ambiguity. The result was a structural imbalance that left courts out of place and agencies in charge. In Loper Bright, the Supreme Court ended Chevron deference and returned the power to interpret law to the courts. This was a necessary correction. Courts must decide what the law means. Congress must write clear statutes. Agencies must enforce them. Loper Bright restores a proper constitutional triangle by returning the courts’ constitutional power to interpret federal statutes. But ending Chevron deference does not mean courts should disregard agency expertise altogether. Agencies possess subject-matter knowledge that often can assist courts in understanding complex statutory schemes. The key challenge for courts after Loper Bright is determining how to remain open to agency insights without ceding legal judgment under this emerging framework. Courts can and should create structured opportunities for agencies to be heard (just without being bound by them). This article promotes the principle of considering without conceding and offers practical mechanisms for integrating agency knowledge into judicial reasoning. These include: * Allowing agencies to participate as amici in court proceedings, either on motion or by leave of court;  * Inviting limited comment letters or technical memoranda from agencies when specialized input would be helpful to a court’s analysis;  * Using court-appointed independent experts under Federal Rule of Evidence 706 to assist with complex factual or scientific issues; and  * Considering legislative solutions or local rules that facilitate courts’ requests or management of agency input. These mechanisms would allow courts to benefit from the expertise of those with specialized knowledge and experience while keeping the authority to interpret the law where it belongs: in the judiciary. They would also give regulated parties and the public a clearer view of who is influencing the interpretation of statutes and on what grounds. This Article argues that courts should develop a principled and restrained framework for considering agency views. Courts should evaluate agency input for its reasoning and relevance, not its source. This approach keeps courts in charge, respects the expertise of agencies, and encourages Congress to legislate more clearly and completely.
  • Journal Article5 May 2026

    A New Age Dawns on First Street: The Supreme Court’s Use of Loper Bright During the October 2024 Term

    Ryan Mulvey, Michael Pepson
    This Article analyzes the impact of the Supreme Court’s landmark decision in Loper Bright Enterprises v. Raimondo, which overruled Chevron deference and redefined judicial review of legal questions in the administrative-law context. Specifically, the Authors explore how the Court operationalized Loper Bright throughout the October 2024 Term to emphasize the importance of independent, de novo review, as well as the robust use of traditional canons of statutory interpretation to reach the original public meaning of statutes. The Article also explores the implications of the Court’s recent use of Loper Bright for related doctrines like so-called “Skidmore deference,” the major questions doctrine, and nondelegation principles. Looking forward, attention is given to unresolved questions—including those before the Court in the October 2025 Term—on such issues as statutory stare decisis and the future of other deference doctrines.
  • Journal Article5 May 2026

    An Investigation of the Government’s Legal Strategy After Loper Bright

    Will Yeatman, Charles Yates
    For forty years, the Chevron “two-step” dominated judicial review of statutory interpretation issues in the administrative law context. Then, in Loper Bright Enterprises v. Raimondo, the Supreme Court ended Chevron deference. This Article investigates what comes next. Specifically, we explore how government lawyers have strategized in the wake of Loper Bright. Based on an original dataset of government briefs, we find that the government is advancing at least six substitutes for Chevron deference. Typically, the government combined two or more of these substitutes into an aggregated claim for Chevron-like deference. Our preliminary data suggests that courts have been skeptical of the government’s initial litigation strategy after Loper Bright.

Most Popular Articles

  • Journal Article
    31 January 2024

    The Fallacy of Systemic Racism in the American Criminal Justice System

    Paul Larkin, GianCarlo Canaparo
    Critics of the criminal justice system have repeatedly charged it with systemic racism. It is a tenet of the “war” on the “War on Drugs,” it is a justification used by the so-called “progressive prosecutors” to reject the “Broken Windows” theory of law enforcement, and it is an article of faith of the “Defund the Police!” movement. Even President Joe Biden and his chief lieutenants leveled the same allegation early in this administration. Although the President has eschewed the belief that Americans are a racist people, others have not, proclaiming that virtually anyone who is white is a racist. Yet, few people have defined what they mean by that term. This Article examines what it could mean and tests the truth of the systemic racism claim under each possible definition. None stands up to scrutiny. One argument is that the American citizens who run our many institutions are motivated by racial animus. But the evidence is that racial animus is no longer tolerated in society, and what is more, the criminal justice system strives to identify it when it does occur and to remedy it. Another argument says that the overtly racist beliefs and practices of the past have created lingering racist effects, but this argument cherry-picks historical facts (when it does not ignore them altogether) and fails to grapple with the country’s historic and ongoing efforts to eliminate racial discrimination. It also assumes a causal relationship between past discrimination and present disparities that is unsupported and often contradicted by the evidence. Yet another argument relies psychological research to claim that white Americans are animated by a subconscious racial animus. That research, however, has been debunked. Still another argument says that the criminal justice system is systemically racist because it has disparate effects across racial groups, but this argument looks only at the offenders’ side of the criminal justice system and fails to consider the effect of the criminal justice system on victims. Proponents of the systemic racism theory often proffer “solutions” to it. This Article examines those too and finds that many would, in fact, harm the very people they aim to help. In the context of the “War on Drugs,” where so much of the rhetoric is focused, the authors examine these arguments and solutions. The bottom line is this: the claim of systemic racism in the criminal justice system is unjustified.
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