Today’s Ad Law Reading Room entry is “Regulatory Settlement, Stare Decisis, and Loper Bright,” by Lisa Schultz Bressman and Kevin M. Stack, which was recently published in the NYU Law Review. Here is the abstract:

In Loper Bright v. Raimondo, the Supreme Court adopted and deployed a particular narrative about agency action in support of overruling Chevron: Agencies reverse their own statutory interpretations “as much as [they] like[],” creating pervasive instability in the law, thereby destroying private reliance interests. Based on a study of two decades of agency regulations affirmed by the D.C. Circuit under Chevron, we show how infrequently agencies reversed their interpretive positions. Our study suggests that the Court’s regulatory “whiplash” narrative is overstated and that there is an underappreciated institutional settlement for notice-and-comment rules under Chevron. Identifying this regulatory settlement is important not only to correct the record but because it sheds light on a pressing question raised by Loper Bright: How much stare decisis effect should courts give to prior judicial decisions that affirmed an agency interpretation in reliance on Chevron? Our study reveals the true risks to legal stability that would come from courts re-interpreting the relevant statutory language and reversing previously upheld regulations. Courts therefore should have an extraordinary justification for overruling or avoiding precedent that affirmed an agency regulation under Chevron. In addition, our study provides guidance to courts on another significant issue after Loper Bright: How much respect should they give under Skidmore to regulations that amend the agency’s prior regulations in some respect? Although we find that agencies rarely reversed their interpretive positions under Chevron, we also find that they did revise their regulations in routine ways, as a necessary part of informed rulemaking. Our study suggests that courts should not treat any agency regulatory change as proving the Court’s whiplash narrative and as presumptively ousting amended regulations from judicial consideration and respect.

This article is a first-of-its-kind empirical investigation of the “whiplash narrative,” according to which Chevron allowed agencies to frequently reverse their positions on interpretive questions, with destabilizing results. The whiplash narrative has attracted influential proponents, including Justices of the Supreme Court, and it appeared to motivate the Court when it finally overruled Chevron in Loper Bright.

Bressman and Stack argue that the whiplash narrative’s story is at best overstated. Presenting results of an empirical investigation into the subsequent histories of regulations where the D.C. Circuit found that an embedded agency interpretation passed Chevron step two, Bressman and Stack find that agency outright reversals of positions were quite rare, and the changes that did occur tended to be modest and reflect technocratic determinations. Perhaps the most fascinating part of the paper involves the authors’ discussion of how Chevron facilitated interbranch regulatory settlement, an insight from which they draw important lessons for the future of administrative law.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.