The Courts

Dylan Gyauch-Lewis reviews the Supreme Court’s recent spate of rulings redefining administrative law and how they threaten the National Labor Relations Board’s authority.

James Tierney finds that Loper Bright, the latest ruling in a rash of Supreme Court cases undermining the Securities and Exchange Commission’s authority, will limit the agency’s intervention in the market and produce uncertainty for businesses as they guess which rules will survive the judicial review.

Douglas Ross writes that for most of its history, the Federal Trade Commission did not rely on the Chevron doctrine to enforce its mandate to prohibit “unfair methods of competition” and “unfair or deceptive acts or practices.” Thus, Loper Bright will not significantly alter the FTC’s historical role in regulating competition. However, the Chevron doctrine could have been a useful ally to the current FTC, which under Chair Lina Khan has pursued more ambitious rulemaking, such as to ban noncompete clauses. Without the Chevron doctrine, the FTC will face a more arduous path to defending its new rules as they are challenged in the courts.

Sharon Block writes that after Loper Bright, there remain many questions about how the courts will treat the discretionary rulemaking authority of the National Labor Relations Board to protect workers’ right to choose to join unions and act collectively. While precedent suggests the NLRB could retain most of its power to issue and enforce rules, the recent history of a Supreme Court that has shown little favor toward workers or government intervention suggests a narrower reading of the NLRB’s authority may be coming.

Blaine Saito writes that the end to the Chevron deference doctrine could lead to a return to the National Muffler standard that grants judicial deference to long-standing agency rules and rules promulgated contemporaneously with Congressional statute. This may mean that the courts overturn newer taxation rules, though the Internal Revenue Code provides explicit discretionary rulemaking power to the Treasury and Internal Revenue Service, which should further limit Loper Bright’s impact on the agency.

Adam Crews writes that Congress’s expressly broad grants of rulemaking power mean that the Supreme Court’s Loper Bright decision limiting federal agencies’ discretion will likely affect the Federal Communications Commission less than some other federal agencies. Instead, the major questions and nondelegation doctrines pose greater threats to the FCC’s regulatory discretion.

W.C. Bunting and Tomer Stein investigate the role of amicus curiae process in the development of business law cases at the state level. The findings reveal that the business law amicus curiae process is dominated by lobbying groups, particularly by associations serving big business, and that these "Amicus Lobbying" efforts have a higher success rate compared to non-lobbying groups.

The following is an excerpt from Despoina Mantzari's book, "Courts, Regulators, and the Scrutiny of Economic Evidence," now out at Oxford University Press.

According to a poll conducted by ProMarket at the Stigler Center Antitrust and Competition Conference, experts were skeptical about the Department of Justice's antitrust case against Apple, with 54% believing it had the lowest odds among the five Big Tech antitrust cases of a ruling in favor of the government. In contrast, the experts were more optimistic about the government's chances in the Google AdTech case, with 52% saying it had the best odds for a government win, and another 21% favoring the Google Search case.

Carl Shapiro discusses the central role of economics in merger review under Section 7 of the Clayton Act. Shapiro traces the evolution of merger law in response to advances in Industrial Organization economics over the past 50 years, highlighting how economic concepts and analysis are indispensable for predicting the likely competitive effects of proposed mergers.