After 30 years of litigating for the U.S. Department of Justice, Alisa Klein happily shares her expertise — in and out of the classroom.
The Wilmington University School of Law Professor recently participated in three panel discussions and wrote two blog posts for the Yale Journal on Regulation.
“It’s a way of staying connected to the various administrative law professors across the country,” Klein said. “They’re issues that, because of my work, I’ve been thinking about for many years.”
One issue is the power of district court judges, which she and fellow panelists debated during the Administrative Conference of the United States (ACUS) Forum on Nationwide Injunctions.
“The Department of Justice was consistent across administrations over decades,” she said. “Our position has been that there are roughly 600 individual district court judges. They should be modest in their role and only give relief to the party before them. They shouldn’t be blowing up executive branch regulations for the nation.”
She tackled the topic in a Yale Journal on Regulation blog post and an earlier article in the Administrative Law Review. Another piece on universal district court remedies is in progress.
Examining Loper Bright and Chevron
Her second post for the Yale Journal on Regulation relates to Loper Bright. The June 2024 Supreme Court decision overruled Chevron, a 1984 case that allowed judges to defer to a federal agency’s reasonable interpretation of a statute. The doctrine became known as Chevron deference.
“I don’t think anyone was surprised that when the Supreme Court had the opportunity they overruled it,” Klein said. “It’s not really a partisan issue. It’s just a power issue.”
At a Richard S. Rodney Inn of Court event, she and others analyzed Loper Bright for an audience of about 250 Delaware lawyers. Klein also organized a virtual panel for the American Bar Association (ABA) Administrative Law Fall Conference, calling it “Was the Push To Overrule Chevron Much Ado About Nothing?”
“My personal view is — yes,” she said. “This weight that courts were supposed to give agency interpretations had long not had a lot of real-world effect.”
“Delaware was one of the first states to repeal Chevron deference, and having this perspective into the future of the administrative state was a fascinating exercise,” stated ABA Panel Moderator Neena Menon. “All the panelists provided useful insights for the future of administrative deference on the federal level and tools for practitioners to actually use the new frameworks in litigation.”
Looking ahead, Klein feels consistency will be key.
“I find it underscores the difference between policy and legal reasoning because you have to be consistent,” Klein said. “And one thing everyone is now looking to see is if the Supreme Court will be consistent.”
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