Admin Law and Fed Courts

A colleague asks how the new administrative-law decision--Loper Bright (overruling Chevron) and Jarkesy (securities fraud claims for civil penalties must be in Article III courts with a jury)--will affect my Civ Pro or Fed Courts courses. Given the siloing of the curriculum, the answer is not much.

For my purposes, Jarkesy is a bigger deal. I spend time on non-Article III tribunals (with a "take Ad Law" admonition), including the public-rights doctrine. Jarkesy represents the first time the Court has rejected public rights as to claims involving the U.S. as sovereign. So last year was relatively easy, as reflected in Sotomayor's dissent--public rights apply to disputes involving the U.S. as sovereign and to private claims intimately tied to a statutory scheme involving public benefits. (Alternatively, I like this framing from John Golden and Thomas Lee). Whatever the uncertainty about the latter category's boundaries, Congress could direct disputes involving the U.S. outside of Article III. Jarkesy destroys that certainty, if the claim (and remedy) can be described as "legal" in some sense. I also will have to introduce something of the Seventh Amendment into that mix.

I do not know enough ad law to comment on how Loper Bright and eliminating Chevron affects Article III courts. Perhaps they will see more cases challenging agency decisions, to the extent Chevron deference deterred some plaintiffs from pursuing more-difficult cases. And obviously the briefing and decisionmaking in those cases will change (as it will in the agencies themselves). It will not affect my course. I leave to others predictions about its effects of both cases on different pieces of the administrative state of non-Article III decisionmaking.