The recent survey conducted by Bloomberg Law highlights a distinct disparity between in-house and outside lawyers’ views on the potential effects of the US Supreme Court overruling or modifying Chevron. Specifically, in-house counsel appears to anticipate a considerable transformation to their practices compared to law firm attorneys. Essentially, those working heavily in regulatory fields are most concerned about any adjustments.
Of the 326 respondents polled in relation to how modifications to Chevron may impact their practices, 98 worked in-house, while 228 were part of law firms. Particularly intriguing is the higher proportion of in-house lawyers who anticipate Chevron related adjustments across all types of changes: substantial (20% to 14%), moderate (24% to 19%) and slight (36% to 28%). In contrast, law firm lawyers were almost twice as likely (39% compared to 19%) to predict no adjustments at all to their practice.
The distinct discrepancy could be attributed to the fact that regulatory issues generally fall first on in-house counsel’s shoulders, prompting them to foresee a more immediate impact should the Supreme Court modify agency deference.
When broken down by the 10 practice areas with the greatest number of survey responses, over half of the respondents in each group believe their work will undergo some change due to the imminent rulings in Loper Bright and Relentless, regardless of whether the change is significant, moderate, or slight.
The more predictable results showed that lawyers working in regulatory-rich practice areas, such as compliance, labor & employment and privacy & data security, were some of the most apprehensive. However, there were also some unexpected results. Lawyers specializing in banking & finance and mergers & acquisitions may also face significant challenges if regulatory deference changes, despite reporting the same level of anticipated change as the more state-law-based commercial contract professionals.
Ultimately, the framework for reviewing federal agency actions does not affect every single area of the legal practice, but it is clear that a significant portion of legal practitioners will be impacted by the Supreme Court’s decisions in Loper Bright and Relentless.
For further reading, and a deeper understanding of these issues, check the related content on Bloomberg Law’s new In Focus: Chevron, Loper & Agency Deference page, the new Practical Guidance on the Chevron Doctrine, and the new Practical Guidance on Judicial Standards for Agency Review.
For the detailed analysis and source report, click here.