Federal agencies expanding their power beyond congressional intent? Unelected bureaucrats making policy decisions? Regulatory whiplash?! According to the litigants urging the Supreme Court to strike down the Chevron doctrine in the Loper Bright case, those were the harms Americans would continue to face if Chevron deference were allowed to continue.

But striking down the pivotal legal principle that had been in place for 40 years would bring its own risks, defenders of Chevron argued. Scientific and technical decisions would need to be made by judges with no specialized expertise. Regulatory uncertainty would soar, as thousands of existing rules face new challenges. And the Supreme Court itself could be forced to become, as Justice Ketanji Brown Jackson put it, "uber-legislators."

In part two of our episode on Loper Bright, the high court ostensibly considers the plight of the herring fishermen, but actually looks to decide whether to abandon the Chevron doctrine once and for all.Stylebook flag

Featured Guests:

Ryan Mulvey, counsel with the Cause of Action Institute

Jeff Kaelin, director of sustainability and government relations at Lund’s Fisheries

Wayne Reichle, President of Lund's Fisheries

Gillian Metzger, Harlan Fiske Stone Professor of constitutional law at Columbia University

Lydia Wheeler, co-host of Cases and Controversies & Supreme Court reporter for Bloomberg Law

Greg Stohr, co-host of Cases and Controversies & Supreme Court reporter for Bloomberg News

Kimberly Robinson, co-host of Cases and Controversies & Supreme Court reporter for Bloomberg Law

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Hosted and produced by Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Cover Art: Jonathan Hurtarte

Special thanks to Tom Taylor, David Schultz, Paul Detrick, Isabel Gottlieb, and Matt's baby for their vocal performances.

Wayne Reichle – who’s been in the fishing business his whole life – had never heard of the Chevron doctrine. That's the two-step legal test that courts used for the past 40 years to decide whether a federal agency had the authority to make a regulation.

"No idea," said Reichle, president of New Jersey-based Lund's Fisheries. "Myself, and many, many fellow fishermen had no idea what the Chevron doctrine was."

That changed after a group of fishermen challenged a federal regulation requiring the herring industry to pay for onboard federal observers. "I think there’s quite a few that know what the Chevron doctrine is today," Reichle said.

This season on UnCommon Law, we’re exploring the limits of agency power. To what extent are federal agencies authorized to create and implement regulations that aren't explicitly mandated by Congress? And what happens when an agency goes too far? In this episode, the story of the fishermen who fought back.

Featuring:

Jeff Kaelin, director of sustainability and government relations at Lund's Fisheries

Ryan Mulvey, counsel with the Cause of Action Institute

Erica Fuller, senior counsel with the Conservation Law Foundation

Leif Axelsson, captain of the Dyrsten fishing vessel

Greg Stohr, Supreme Court reporter for Bloomberg News

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Hosted and produced by Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Additional Editing: Andrew Satter

Cover Art: Jonathan Hurtarte

Congress often passes major legislation setting out broad principles, and then lets the federal agencies sort out the details. But what should an agency do if Congress’s instructions are ambiguous or silent?

That was the question facing the Supreme Court 40 years ago, when the Reagan administration's Environmental Protection Agency adopted a business-friendly interpretation of key provisions of the Clean Air Act. After the Natural Resources Defense Council sued, the Supreme Court set out a principle that would define the extent of agency power for decades – until last year, when Loper Bright upended the way courts evaluate agency actions.

This season on Uncommon Law, we’ll explore the rise and fall of agency power, and what that could mean for the future of regulation in America. Plus: Will President Trump and his advisor Elon Musk be able to use the new legal landscape to eliminate the regulations they find too burdensome?

Featuring:

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Host/Producer: Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Additional Editing: Andrew Satter

Cover Art: Jonathan Hurtarte

This season on UnCommon Law, join us as we explore the rise and fall of agency power, and what that could mean for the future of regulation in America.

Generative AI has promised to reshape the practice of law ever since ChatGPT emerged. However, it's been unclear just how large law firms are using AI. Has it changed how practitioners do their jobs on a daily basis? Are we witnessing the emergence of a revolution in how lawyers do their work?

Uncommon Law's Matthew Schwartz sits in as guest host on this episode of On the Merits. He talks with John Quinn, founder and chair of Quinn Emanuel Urquhart & Sullivan, as they discuss his firm's stance on artificial intelligence and the future of the billable hour.

In the season finale of UnCommon Law, we explore the power of AI to transform legal practice. Featuring insights from top law professors, a federal judge, and industry leaders like John Quinn, founder of Quinn Emanuel, we ask: Can AI’s promise of efficiency overcome its risks—and redefine the future of law?

Guests:

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Host/Producer: Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Additional Editing: Andrew Satter

Cover Art: Jonathan Hurtarte

Deepfakes. Disinformation. Algorithmic bias. Job displacement. These are just some of the harms legislators and regulators worry about when they think about how to tackle the risks posed by artificial intelligence.

The first episodes of this season of UnCommon Law deal with generative AI in the copyright law context, since the technology uses massive amounts of copyright protected work. But while copyright law might be the beginning, there's so much more to the story of generative AI and the law.

In this episode, we examine what the government might do to ensure that 21st century life doesn't turn into a dystopian future.

Guests:

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Host/Producer: Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Additional Editing: Andrew Satter

Cover Art: Jonathan Hurtarte

The US copyright system encourages human creativity. So does it make sense to grant a copyright to work created by AI with the click of a button? And, if AI generated artwork is given copyright protection, how would that impact the livelihoods of creative professionals?

In our last episode, we looked at Jason Allen’s AI-generated artwork, "Théatre D’opéra Spatial," and the arguments why it should have some copyright protection. This time, we examine the other side – the most powerful arguments for why AI-generated work should never be eligible for copyright.

Guests:

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Host/Producer: Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Additional Editing: Andrew Satter

Cover Art: Jonathan Hurtarte

The art world was rattled when Jason M. Allen won first place in the Colorado State Fair for "Théatre D’opéra Spatial" — digital artwork created with artificial intelligence.

Allen had revised his text prompts hundreds of times before landing on the final work; Allen considers Space Opera Theater his creation. But some artists hated his victory. "They were saying I was falsely attributing authorship to something I did not create," Allen said. 

After winning, he submitted the image to the US Copyright Office for a state-issued seal of approval, an official document certifying that the artwork was indeed his creation. Would the Copyright Office agree?

We delved into the controversy surrounding the use of copyrighted material in training AI systems in our first two episodes of this season. Now we shift our focus to the output. Who owns artwork created using artificial intelligence? Should our legal system redefine what constitutes authorship? Or, as AI promises to redefine how we create, will the government cling to historical notions of authorship?

Guests:

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Host/Producer: Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Additional Editing: Andrew Satter

Cover Art: Jonathan Hurtarte

Generative AI tools are already promising to change the world. Systems like OpenAI's ChatGPT can answer complex questions, write poems and code, and even mimic famous authors with uncanny accuracy. But in using copyrighted materials to train these powerful AI products, are AI companies infringing the rights of untold creators?

This season on UnCommon Law, we'll explore the intersection between artificial intelligence and the law. On episode one, we learned about the lawsuits filed against AI companies that trained their large language models on copyrighted work without permission. Now we'll learn about the legal defense that could give the AI companies a pass to continue scraping up whatever content they want, copyright-protected or not.

Guests:

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Host/Producer: Matthew S. Schwartz

Editor/Executive Producer: Josh Block

Additional Editing: Andrew Satter

Cover Art: Jonathan Hurtarte