Professor Marshall Breger participated in a Conference Board webcast on September 19, discussing "The Future of Regulatory Law." This session examined the evolving regulatory process in light of recent cases such as Loper Bright, Jarkesy, and Lucia, particularly from the business community's perspective.

Participants also included:

• Hollis Hart, former President of International Finance Management at Citi
• Michael Archbold, former CEO of GNC Holdings, Inc.
• John Gardner, Vice President of Public Policy at the Committee for Economic Development

Breger asserted that Loper Bright represents what the late Justice Scalia referred to as an "avulsive" decision, significantly altering the relationship between administrative agencies and the courts. The ruling rejected the previous Chevron standard, which granted deference to agencies when the statutory text was ambiguous and the agency's interpretation reasonable. Without Chevron, judges must exercise their "independent judgment" (resulting in zero deference), though they can still show "respect" for the agency's decisions, a concept known as Skidmore deference. While the Loper Bright majority opinion specifically addressed Skidmore deference, initial empirical evidence indicates that judges are hesitant to adopt it. A Bloomberg survey of federal district court decisions in July 2024, the month following the Loper Bright ruling, revealed that out of 20 opinions referencing Loper Bright, only one cited Skidmore. Breger suggests that these early figures indicate judges, at least in the initial wave of "freedom from Chevron," are reluctant to extend such respect to agency interpretations of their own statutes. Only time will reveal the broader implications.

Breger also explored the future of the administrative judiciary post-Jarksey, analyzing potential institutional arrangements that could be most beneficial to the business community in various contexts.

The Conference Board is a global business membership organization that aids business leaders in understanding, planning for, and shaping the future. Its board members typically consist of CEOs from Fortune 1,000 corporations, who often require regulatory certainty alongside the need for deregulation. The discussion centered on how business and government can collaborate within the new regulatory framework to foster a fair and efficient regulatory environment.

Breger teaches courses in Administrative Law and Statutory Interpretation at Catholic Law.