The Shifting Regulatory Landscape: MSL Panel Explores Impact of Supreme Court Decisions

In June 2024, the Supreme Court overturned the doctrine of Chevron deference in Loper Bright Enterprises v. Raimondo. The doctrine, established in 1984 in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., required courts to accept an agency’s reasonable interpretation of laws that the agency is responsible for enforcing. The Court now says that judges, not agencies, should decide how to interpret statutes. 

On October 7, the Master of Science in Law (MSL) Program at Northwestern Pritzker School of Law hosted a panel discussion that explored these critical shifts in U.S. regulatory and administrative law. Experts from law, industry, and academia delved into how Loper Bright and other recent rulings will affect regulatory practices, compliance, and the broader business landscape – topics relevant to MSL and JD students alike, especially those whose studies focus on the intersection of law, business, and technology. Introducing the panel, Director of Operations and Outreach Evan Goldberg noted that the panel event was inspired in part by MSL students and alumni, who had been engaged in active discussions about how the Court’s decisions might affect their industries. 

The panelists were Shelby Buettner (JD ‘15) assistant general counsel, regulatory law and compliance officer, life sciences at Becton Dickinson (BD); Evelyn Miller (JD ‘04), legal advisor at Amazon Web Services; and Law School professors Daniel B. Rodriguez and James B. Speta.  Michael R. Barsa, Professor of Practice at Northwestern, moderated. 

Speta began the discussion by reviewing the implications of the decision, including what he perceived to be the court’s mood toward judicial review of agency action: “The court says, and I find this somewhat remarkable, that statutes will always have a meaning if you just work hard enough at statutory interpretation,” he said, to laughter in the room. Speta noted that the Court is essentially denying the significant role of policy in statutory interpretation and the need for agency expertise in interpreting statutes and implementing regulations. The Court believes the interpretation of statutes has become too political, Speta said, and that “the administrative state has gone too far.”

Miller provided her perspective on the ruling’s impact, observing that many in the tech sector believe that agencies have gone too far. The FTC has used its authority to “force technology companies into certain data practices and user consent mechanisms,” Miller noted, “and many tech companies have challenged that guidance. This is true for the Metas of the world, the Googles of the world, and even the small entities out there that are startups and dealing with privacy issues.”

Buettner weighed in with her perspective from the life sciences industry, acknowledging that there will very likely be an uptick in regulatory challenges. She stated that one thing in-house counsel, like herself, need to think about is optics. “What are patients going to think of this regulatory challenge if it’s on the front page of a newspaper? What about the agency’s posture in that litigation?

Another point to consider, according to Buettner, has to do with strategically operationalizing and monitoring regulatory challenges across industries. “I have folks opining at length about what will happen to the life sciences industry.” She noted that internal clients have reached out to her with concerns about stability and regulations. “I get it. It’s scary. Folks think it’s difficult to confidently act in reliance on regulations that might be challenged. There’s also this perspective that differing jurisdictional interpretations will complicate compliance efforts as we see more of this play out.” Despite the uncertainty, Buettner noted: “I think it’s a really exciting time if you’re interested in administrative law.”

Miller raised the complexities involved in drafting regulations, and the technical expertise required, noting that she’s been involved in this process. “It gets complicated,” she said. “It’s not just about the facts. It’s about the way that something’s drafted to address the way technology is built. If you don’t have an understanding of the technology, how could you possibly interpret the law?”

Speta opined that Congress has to build more capacity to handle these issues. “That’s one of the features of our political system. When Congress has thought they needed expertise, they build an agency. Now they’re going to have to build more internal expertise.”

Rodriguez agreed, adding that not just expertise is needed, but “also, ingenuity and creativity in how they conduct regulation.” He mentioned two areas that still lack anywhere close to adequate regulatory frameworks – AI and cryptocurrency. “I teach a class on frontier regulation that looks at emerging issues on the regulatory frontier. The outcome of a lot of our discussions is fairly pessimistic – the lack of capacity and the lack of regulatory ingenuity makes it extremely difficult to imagine how we, the people, are going to charge our elected representatives with dealing with these very complex and novel regulatory issues.”