Aaron L. Nielson (University of Texas at Austin – School of Law) has posted “Corrupting” Expertise in the Age of Loper Bright, U of Texas Law, Legal Studies Research Paper (forthcoming), on SSRN. Here is the abstract:
This essay — drawn from remarks made at the 44th Annual National Student Symposium for the Federalist Society for Law and Public Policy Studies — argues that in the wake of Loper Bright, there is a danger that agencies will increase their use of what Professor Wendy Wagner has called “the science charade.” That is, because agencies know that courts tend to defer to agency’s scientific judgments, agencies may increasingly disguise their policy views as technical scientific conclusions. This corruption of science is regrettable but may be the product of the same incentives that encouraged agencies to advance strained readings of old statutes in a pre-Loper Bright world. There is no perfect solution to this problem but combatting it may counsel in favor of greater use of formal rulemaking.
Highly recommended.