—Oksana Manko, independent legal researcher[1]
The debate over Loper Bright Enterprises v. Raimondo has settled into two camps: Cass Sunstein’s warnings about a destabilized regulatory state, and Ilya Somin’s and Jonathan Adler’s more measured view that the practical disruption will be smaller than the doctrinal one. Both are arguing about the size of the shock. Neither asks the prior question: what happens when the job of resolving statutory ambiguity moves from an actor that can correct itself by Friday to one that can only correct itself case by case, circuit by circuit, over years — the dynamic now commonly called the “judicial lottery”? My answer, from outside American administrative law entirely: ambiguity that is expensive to resolve after the fact is worth paying to resolve before the fact. That is not a doctrinal claim. It is a design claim, and it holds regardless of which legal system is doing the designing.
Start with the mechanics. Under the US Supreme Court decision in Chevron, an agency resolved statutory ambiguity, and an agency can revise itself quickly — issue guidance Tuesday, amend it Friday. That arrangement had real costs, chiefly that legal meaning tracked the policy preferences of whoever won the last election. But it was fast.
The decision in Loper Bright moves that job to courts, and courts do not work that way. A court resolves a question only when a case happens to require it, on litigation’s timeline, and a different lower court may resolve the identical question differently until the Supreme Court steps in — which can take years. That interim period is the judicial lottery: the meaning of a federal term depends on which court one appears before and which panel you draw. Corner Post, Inc. v. Board of Governors of the Federal Reserve System, decided three days after Loper Bright, can keep the lottery running far longer than previously assumed: an APA claim doesn’t accrue until the specific plaintiff is injured, so the window doesn’t simply close after six years. It waits for the next ticket.
This exact problem occurred during Ukraine’s post-2014 decentralization reform — not in relation to the federal courts, but in the redistribution of regulatory authority across hundreds of newly created local governments. When interpretive power moves across levels of government without a fast central actor empowered to resolve ambiguity, the same institutional pressure appears: either you catch the ambiguity at the drafting stage, or you leave it to be fought out later, community by community. In the remainder of this post, I accordingly offer an institutional comparison, not a political one.
By way of context, I spent thirteen years inside Ukraine’s Administration of the President working on that reform’s legal architecture — one of the largest transfers of regulatory authority from a central government to local governments anywhere in post-Soviet Europe. The working groups I was part of treated the ambiguity risk as a drafting defect, not an inevitability.
During the drafting of the 2014 Concept for Reforming Local Self-Government and the 2015 law on voluntary amalgamation of territorial communities in Ukraine, statutory ambiguity was treated as something to be caught before enactment, not a dispute to be resolved later. The specific ambiguities that the drafters focused on involved the allocation of land powers, delegated authority, and budget financing between newly formed communities and state bodies — exactly the kinds of question that, left unresolved, become disputes for whichever court or ministry encounters it first.
None of this is complicated. A term whose ambiguity is resolved at the drafting table entails the cost of a few hours of legal review. The same term, left ambiguous and fought out later in a fragmented, precedent-driven system, takes years and produces interim case law that binds unevenly depending on geography. American federalism makes the fix harder to execute than Ukraine’s unitary system did — there is no single ministry that can issue a single clarifying instruction across fifty states. But the asymmetry itself does not depend on which system is doing the resolving. It is a property of ex ante versus ex post ambiguity resolution, period.
This does not resolve the Sunstein/Somin disagreement about how large Loper Bright‘s practical effects will turn out to be. But it reframes what the debate is actually about. The question is not only how much authority has moved from agencies to courts. It is how much slower the new arrangement will be at doing the one thing every legal system eventually has to do: tell a regulated party, definitively, what an ambiguous term means. A federal agency with a large legal staff can wait out a judicial split. A municipality cannot.
The roughly 90,000 local governments in the United States that draft ordinances under federal statutory authority are now running the judicial lottery with a fraction of an agency’s legal capacity and none of its ability to issue new guidance when a term turns out to be a problem. That is not a brief for Chevron. It is an argument that the new system requires a kind of drafting-stage discipline it never needed before — one that municipalities, unlike federal agencies, cannot afford to build only after the lottery ticket has already been drawn.
Suggested citation: Oksana Manko, The Judicial Lottery Problem Isn’t New — It’s Just New to Us, Int’l J. Const. L. Blog, Aug. 12, 2026, at: http://www.iconnectblog.com/the-judicial-lottery-problem-isnt-new-its-just-new-to-us/
[1] Based in Tampa, Florida, and the author of the Judicial Impact Assessment (JIA) framework, a methodology for evaluating municipal regulatory risk in the post-Loper Bright landscape. She served for thirteen years as Chief Consultant in the Administration of the President of Ukraine, where she worked on the legislative framework for the country’s decentralization reform.