Law Commons^™

The Administrative State's Second Face, Emily R. Chertoff, Jessica Bulman-Pozen

Faculty Scholarship

We often assume that there is one administrative state, with one body of administrative law that governs it. In fact, the administrative state has two distinct faces: one turned toward regulation and benefits distribution, and one turned toward physical force and surveillance. The two faces are growing further apart under the Roberts Court, which has hemmed in the first face with decisions like Loper Bright while showing solicitude for national security and law enforcement agencies.

This Article delineates the two faces of the administrative state. It provides a descriptive account of the second face and the distinctive administrative law that …

Presidential Supremacy Over Administrative Agencies, Gary Gensler, Lev Menand

Faculty Scholarship

In the United States, the public has long benefited from the role played by administrative agencies with a degree of autonomy from the White House, each agency with distinct duties and authorities to implement the law as set out by Congress.

In its first hundred days, the second Trump administration has moved rapidly to centralise control over all administrative agencies, including so-called independent agencies, which have long operated at a greater remove from the White House than ‘executive’ agencies like the Department of State and the Department of Commerce. The administration is asserting an interpretation of the Constitution known as …

Dark Patterns As Disloyal Design, Johanna Gunawan, Woodrow Hartzog, Neil Richards, David Choffnes, Christo Wilson

Indiana Law Journal

Lawmakers have started to regulate “dark patterns,” understood to be design practices meant to influence technology users’ decisions through manipulative or deceptive means. Most agree that dark patterns are undesirable, but open questions remain as to which design choices should be subjected to scrutiny, much less the best way to regulate them.

In this Article, we propose adapting the concept of dark patterns to better fit legal frameworks. Critics allege that the legal conceptualizations of dark patterns are overbroad, impractical, and counterproductive. We argue that law and policy conceptualizations of dark patterns suffer from three deficiencies: First, dark patterns lack …

Secretive Sheriffs: Opacity And Variation In California's Jail Responses To Covid-19, Aparna Komarla, Hadar Aviram

Nevada Law Journal

No abstract provided.

Decades Of Indifference And Failures In Accountability In The Provision Of Medical Care In Federal Prisons, Nicole B. Godfrey

Nevada Law Journal

No abstract provided.

Planning A New Paradigm: Tribal Co-Stewardship And Federal Public Lands Planning, Monte Mills, Martin Nie

Articles

Planning is a critical part of the federal government’s management of the nation’s public lands. Over the last half century, Congress has mandated that each of the four major public land management agencies; the U.S. Forest Service, the Bureau of Land Management, the U.S. Fish and Wildlife Service, and the National Park Service, develop and rely on plans to guide their oversight of public lands and resources. Virtually every activity or decision affecting these public lands can be traced back to language in—or missing from—a plan. But, despite the importance of planning, the process by which each agency develops and …

Flowing Cleanly: The Proper Roles Of The Courts And The Ftc In The Information Marketplace Of Advertising, Kateri J. Son

Journal of the National Association of Administrative Law Judiciary

After an introduction in Section I, Section II of this article will present the history of the commercial speech doctrine, illustrating the rules courts use to evaluate whether the FTC’s actions were constitutional. Section III will explain how the FTC combats deception and will describe the choice of remedies the FTC has available. Section IV will present and evaluate three potential solutions to the conflict between the courts and the FTC on First Amendment issues that courts have implemented. Finally, Section V argues that conflict between the two entities is inevitable, and therefore the middle approach is the best solution …

Cover, Table Of Contents & Masthead, Kateri J. Son

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Foia And The Use Of Ai In Government: Freedom Of Information Or An Empty Promise Of Openness?, Ronald L. Capaldi

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Legal Summaries Of Administrative Law Cases, Kimberly M. Papadantonakis

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Montana Environmental Information Center V. Montana Department Of Environmental Quality, Alexis Karbowicz

Public Land & Resources Law Review

No abstract provided.

Institutional Constraints And The Ai Automation Gap: A Case Study Of Proposal Evaluation In Federal Ict Procurement At U.S. Customs And Border Protection, Farhan Bin Amjad

Harrisburg University Dissertations and Theses

This research investigates the institutional constraints shaping the adoption of AI-assisted proposal evaluation in federal ICT procurement, using U.S. Customs and Border Protection (CBP) as a case study. Although AI tools are increasingly used by contractors to generate proposals, their integration into government evaluation processes remain limited. Using institutional theory as an analytical framework, this study examines how regulative rules, normative expectations, and cognitive assumptions jointly reinforce a risk-averse procurement culture that inhibits automation. Through a mixed-methods approach—comprising policy analysis, procurement data from FPDS and USAspending.gov, and an elite interview with a CBP contracting officer—the research identifies key barriers to …

A View From Inside: The Federal Government's Pivotal Role In Securing And Advancing Access To Justice, Kalpana Kotagal

University of Cincinnati Law Review

No abstract provided.

Automation Mismatch: How Contractor Ai Adoption Challenges Institutional Procurement Norms At U.S. Customs And Border Protection (Cbp), Farhan Bin Amjad

Beyond the Project Horizon: Journal of the Center for Project Management Innovation

This letter explores a growing strain in the U.S. federal procurement: the automation mismatch between AI-powered proposal development by contractors and the regulation-bound evaluation systems at agencies like U.S. Customs and Border Protection (CBP). Tools like Vultron and Unanet AI have enabled federal contractors to increase proposal submission volume, yet institutional constraints such as data sensitivity, budget limitations, and cultural barriers have hindered equivalent modernization on the government side. This article leverages institutional theory and prior research to analyze this disparity, highlighting how legal and cultural factors limit AI integration in procurement. Detailed analysis of these regulatory and cultural influences …

Echoes Of Exclusion: The Underrepresentation Of Women In Congressional Testimony And Its Consequences For Judicial Decision-Making, Caroline L. Bruckner, Elizabeth Keith, Karen O'Connor, Collin A. Coil

ConLawNOW

Congressional hearing witnesses play a major role in the legislative process, providing information to committees to assist members and staff in crafting legislation. Recently, there has been increasing focus on the impact of congressional witnesses on legislative outcomes, executive implementation of federal statutes, and corresponding judicial decisions. This has raised questions as to the extent to which the underrepresentation of women and other marginalized groups as congressional witnesses can be measured and how their lack of representation translates to inequitable outcomes across all branches of government. This work explores the widespread use of congressional witness testimony in recent U.S. Supreme …

Differing Judicial Perspectives: A Look Into The Evolution And Constitutionality Of The United States' Administrative State, Buchanan Albert Cook

Honors Theses

Over time the United States’ administrative state has evolved into something that is quite unrecognizable from its inception in the early years of the nation. This essay will provide an account of the founding of the United States Constitution while recognizing the intent and design of the framers of the Constitution. In juxtapositioning this account with the current state of administrative agencies, questions over the constitutionality of such agencies will be posed. To answer these questions, an overview of the history of administrative agencies in the United States will be given alongside accompanying and significant Supreme Court Cases. This overview …

Bridging The Justice Gap: Low-Income Taxpayer Clinic At North Mississippi Rural Legal Services, Emma-Kathryn Bond

Honors Theses

Over the course of two years, I spent more than 130 hours completing on-the- ground volunteer work with the Low-Income Taxpayer Clinic (LITC), a clinic within North Mississippi Rural Legal Services that provides free legal assistance to individuals navigating disputes with the IRS. While the Sixth Amendment guarantees legal representation in criminal cases, no such guarantee exists for civil matters such as tax disputes, housing instability, or loss of public benefits. Clinics like LITC fill a crucial gap by offering support in areas that are often overlooked, such as tax law, where clients risk audits, wage garnishments, and court proceedings …

Rule 80b And Nonstatutory Judicial Review Of Administrative Action In Maine, Richard A. Langley

Maine Law Review

The 1967 amendments to rules 80B and 81 of the Maine Rules of Civil Procedure (MRCP) constitute significant and potentially far-reaching changes in judicial review of administrative action in Maine. Prior to 1959, nonstatutory judicial review of administrative action in Maine was available only by extraordinary writ. An alternate means of securing judicial review was provided by the original rule 80B of the MRCP adopted in 1959, but because of an apparent overlap of those two procedures, 80B was amended in 1967. That amendment made rule 80B the sole means of obtaining nonstatutory review of all governmental action and a …

Nonstatutory Judicial Review Of Federal Agency Action: A New Approach To Sovereign Immunity, William P. Hardy

Maine Law Review

In deciding whether to review administrative agency action, an astute court seeks to maintain a delicate balance between over-interference with administration of legislatively created programs and denial of plaintiff's rights. This balancing process historically has been hindered by federal courts treating the doctrine of sovereign immunity as a jurisdictional bar to unconsented suits against the United States Government. Regardless of the validity of a plaintiff's grievance and in spite of the relative infrequency of such suits, the courts adhering to this traditional approach mechanically dismiss such actions solely because they seek relief against the sovereign. A few federal courts have …

No Lawyer, No Jail: A Critical Case Study Of Pragmatism And The Flaws Of “Purposeful” Decision Making In Argersinger V. Hamlin, Alisa Smith, Sarah K. Stice

Seattle University Law Review

By releasing conference notes and internal communications, Supreme Court Justices provide insight into the otherwise private decisionmaking process, shedding light on how case outcomes and legal reasoning are framed and negotiated. The watershed case of Argersinger v. Hamlin (1972) extended the constitutional right to counsel to some, but not all, misdemeanor defendants. The case was argued twice, and the Court relied on empirical and authoritative sources to answer complex and practical questions about requiring counsel. This case study employs critical discourse analysis to uncover what influenced the Justices’ decisions and how they framed, shaped, and constructed social realities to foreground …

The Race To Erase: Destruction Of Government Documents Undermines Freedom-Of-Information Laws, Frank D. Lomonte

Seattle University Law Review

In August 2019, reporters with Chattanooga’s daily newspaper, the Times Free Press, filed what seemed to be a routine request for access to emails and other public records held by their local county government. The seemingly unremarkable request set the newspaper’s staff on a months-long journey of unpleasant surprises. The first was a demand to pay the county $717 in advance before being allowed to inspect the documents. The second was that—during prolonged haggling over the fee assessment— the county attorney’s office simply destroyed almost all of the disputed records. Third, and most glaringly, the journalists discovered that Tennessee law …

When You’Re Arrested For A Felony In Seattle, You’Ll Meet Me., Austin Field

Seattle University Law Review

In this Essay, Austin Field, a practicing public defender, uses a first-person perspective to describe what it is like to meet a criminal defendant for the first time. He explains the process from start to finish, detailing everything from the way he introduces himself to how bail works.

"I’ll ask you for your name. Most of the time, you tell me. I check your name against my list. On any given day I’m supposed to interview between five and fifteen people. I have a lot of questions for you. We only have about ten minutes."

The Public Square In A Private-Property Obsessed Country: What New York City’S Pops Regulations Get Right And Why Other Cities Should (Mostly) Copy Them, Carson Mcgregor

Seattle University Law Review

When New York City (NYC) was first becoming the metropolitan monolith it is today, it had a problem: the city streets were chock full of skyscrapers, and sunlight, air, and usable open space were at a premium. In response, the City promulgated its first Privately Owned Public Spaces (POPS) regulations, which allowed developers to build skyward in exchange for providing public space on the street level. Unfortunately, in July of 2023, the New York Times (NYT) discovered that New Yorkers received only a fraction of what they were promised. Building owners received billions of dollars’ worth of added floor space, …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Defining Deference: Impacts Of Abandoning Chevron On Emerging Technology Governance And Administrative Law, R. Aubrey Davis Iii

Seattle University Law Review

Emerging technologies, particularly Artificial Intelligence (AI), often lead to unforeseen legal outcomes. Notable abuses in areas such as facial recognition, employment bias, and housing discrimination are well known. However, legislative responses to these issues either have been largely reactive or there has been no legislative response at all. In lieu of legislation, agencies have sought to fill the gap. For example, the Federal Communications Commission (FCC) recently proposed a rule mandating voter notification for all AI-generated political phone calls citing the Telephone Consumer Protection Act (TCPA) of 1991 as authority. However, the TCPA was originally passed to curtail telemarketing, not …

Intellectual Property Or Modern Folklore? The Problem With Open Gaming Licenses In Tabletop Gaming, Rosie Midget

Seattle University Law Review

This Note addresses how courts and legislatures should address “Open Gaming Licenses” commonly attached to tabletop roleplaying games (TTRPGs), which game publishers use to promote a false image of accessibility—misleading consumers and building goodwill from the misunderstanding. Part I discusses what TTRPGs are, including the defining features of the hobby and culture surrounding it, as well as the unique interplay between publishers and players. Part II explores the question of which elements in a TTRPG system may be subject to copyright protection. Part III examines these elements in practice using Wizards of the Coast’s Dungeons and Dragons TTRPG as a …

Modern Day Colonialism Through HawaiʻI’S Quiet Title And Partition Laws, Cheyann Fujii

Seattle University Law Review

This Note will attempt to highlight important aspects of Hawaiian history to provide readers with a clear picture on how Native Hawaiians are still impacted by colonialism, specifically when plaintiffs bring a quiet title or partition action against Native Hawaiian owners of kuleana lands. Before colonization, the concept of private land ownership did not exist in Hawai‘i, and Native Hawaiians adopted a feudal system by dividing land into geographical areas. Missionaries and businessmen brought Western ideas to Hawai‘i and influenced legislation such as the Great Māhele and the Kuleana Land Act of 1850, which solidified the concept of private property. …

Data Advantage And Merger Review: Can Entrenchment Theory Reform Antitrust Enforcement?, Shin-Ru Cheng

Seattle University Law Review

A merger involving giant digital companies is likely to dampen competition, as it allows those companies to combine and control data access, enabling them to entrench their dominant positions in relevant markets and extend those positions into related markets. While competition law in many jurisdictions aims to prohibit mergers that may substantially lessen competition or create a monopoly, arguably the review of digital mergers is failing because antitrust agencies lack an effective approach to identify data-generated anticompetitive harms. This Article demonstrates that entrenchment theory, recently reintroduced in the 2023 U.S. Merger Guidelines, would help reform the process of antitrust enforcement. …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Caution: Potholes In E-Scooter Data Collection, Dakota Rakestraw

Seattle University Law Review

Lime scooters keep ending up in major waterways in Washington state metro areas, a testament to the ubiquity of e-scooters in the metropolitan landscape. How they get there is unclear. Why they get there is even murkier. Perhaps the answer lies in the implications of modern geolocation data collection through e-scooters and gaps in current data collection regulation curbing individual liberties.

Since September 2020, electric scooters have run Seattle’s streets and have dramatically overtaken ridesharing bike trips. For example, from September 2020 to September 2021, there were about 1.4 million scooter and bike trips with September 2021 seeing 300,000 scooter …