Administrative Law Commons^™

Improving Access To Justice: Plain Language Family Law Court Forms In Washington State, Charles R. Dyer, Joan E. Fairbanks, M. Lynn Greiner, Kirsten Barron, Janet L. Skreen, Josefina Cerrillo-Ramirez, Andrew Lee, Bill Hinsee

Seattle Journal for Social Justice

No abstract provided.

Congress' Encroachment On The President's Power In Indian Law And Its Effect On Executive-Order Reservations, Mark R. Carter Jd, Phd

Seattle Journal for Social Justice

No abstract provided.

Costing A Pretty Penny: Online Penny Auctions Revive The Pestilence Of Unregulated Lotteries, David R. Konkel

Seattle University Law Review

Penny auctions, an online phenomenon imported from Europe, operate by the hundreds in the United States without meaningful oversight from consumer protection agencies. In a penny auction, consumers compete for items one penny at a time. To date, no significant inquiry, either academic or practical, into the legitimacy of the penny auction has occurred. Although marketed as auctions, online penny auctions may actually qualify as lotteries. Unlike the multifarious and confusing definitions of gambling, the long-accepted definition of a lottery consists of three elements: prize, consideration, and chance. If a penny auction satisfies this definition then, under well-established case law …

The Achievement Gap And Disparate Impact Discrimination In Washington Schools, Sarah Albertson

Seattle University Law Review

In today’s public schools, students designated as “white” and “Asian” consistently outperform students from other ethnic groups in test scores and graduation rates. These disparities, commonly called “the achievement gap,” are a symptom of greater issues, or “opportunity gaps.” Washington State has recently taken a further step to address the achievement gap and racial discrimination in schools. In 2010, the Washington legislature passed the Equal Education Opportunity Law (EEOL), HB 3026, in response to the recommendations in commissioned achievement gap studies. The EEOL authorizes the Office of the Superintendent of Public Instruction (OSPI) to enforce this law through regulations. This …

Law And Lawyers In The Incident Command System, Clifford J. Villa

Seattle University Law Review

Although the Incident Command System (ICS) has existed for some forty years, the use of ICS grew significantly in the past decade because the United States learned hard lessons from infamous failures of incident management after 9/11 and Hurricane Katrina. As such, ICS theory and practice must be understood by legal scholars and practitioners who seek to contribute to the growing fields of climate change adaptation and disaster response. Filling a gap in the legal literature, this article will provide lawyers and legal scholars with an introduction to the Incident Command System, outlining the origin, doctrines, and organizational framework of …

A Barrier To Child Welfare Reform: The Supreme Court’S Flexible Approach To Federal Rule Of Civil Procedure 60(B)(5) And Granting Relief To States In Institutional Reform Litigation, Rachel Dunnington

Seattle University Law Review

In a recent decision, Horne v. Flores, the Court demanded a broader and more flexible application of Federal Rule of Civil Procedure (Rule) 60(b)(5). In doing so, the Court opened the door for states to seek relief from court-enforced agreements like consent decrees. This decision undermines the use of institutional reform litigation as a means of fixing the child welfare system and thus deals a further blow to the nation’s most vulnerable citizens. This Note will discuss Horne’s impact on consent decrees stemming from institutional reform litigation in child welfare. Part II will explore the history of Rule 60 as …

Of Justice Sotomayor And The Jicarilla Apache Nation: Slouching Toward Intellectual Honesty And The Canons Of Construction, Jeremy Stevens

American Indian Law Journal

No abstract provided.

The Public Nature Of Indian Reservation Roads, M. Brent Leonard

American Indian Law Journal

No abstract provided.

Enhancing Tribal Sovereignty By Protecting Indian Civil Rights: A Win-Win For Indian Tribes And Tribal Members, Rob Roy Smith

American Indian Law Journal

No abstract provided.

Gas Tax Agreements In Indian Country, Jonathan White

American Indian Law Journal

No abstract provided.

Justice Rehnquist’S Theory Of Indian Law: The Evolution From Mazurie To Atkinson – Where Did He Leave The Court?, Brenna Willott

American Indian Law Journal

No abstract provided.

A Pragmatic Republic, If You Can Keep It, Bill Sherman

Faculty Articles

The administrative state has been bedeviled by doubts about its democratic legitimacy and its questionable Constitutional provenance. Courts and scholars attack or shore up this weakness, but almost all proceed on the assumption that the administrative state is a modern leviathan unimaginable to the Founders. Consequently, questions about the role of politics in agency decisions assign a disfavored role to “pure politics” in rulemaking. This Book Review Essay challenges that assumption and its implications for the role of politics in administrative decisionmaking. Centering on a review of Jerry L. Mashaw’s new book, Creating the Administrative Constitution: The Lost One Hundred …

Members Only: The Need For Reform In U.S. Intercountry Adoption Policy, Colin Joseph Troy

Seattle University Law Review

In the last five years, Americans have adopted nearly seventy thousand children from foreign countries. The trend of intercountry adoption, “the process by which a married couple or single individual of one country adopts a child from another country,” is representative of the new globalized world, where families are formed and dissolved beyond the bounds of national borders. Although intercountry adoption has enabled many adoptive parents to form loving families and provide caring living environments for countless children, intercountry adoption is not without its share of problems. Corruption and abuse, such as child trafficking, have in many cases marred the …

Punctuated Equilibrium: A Model For Administrative Evolution, Mark C. Niles

Faculty Articles

The “public choice” model of the administrative state posits a federal regulatory structure that is dominated by the private entities subject to its policy proscriptions. The formidable advantages in resources and focus enjoyed by the these private entities leave governmental units, like agencies and legislatures, with little realistic chance to resist agency capture and avoid implementing the policy objectives of the parties whom they are charged with regulating.

As theoretically powerful and practically descriptive as this model is, there is one significant question for which it fails to provide a satisfying answer—why, if regulated entities enjoy a strangle-hold on the …

Lifting Burdens: Proof, Social Justice, And Public Assistance Administrative Hearings, Lisa Brodoff

Faculty Articles

In "Lifting Burdens: Proof, Social Justice, and Public Assistance Administrative Hearings," Lisa Brodoff describes the administrative hearing system for public assistance recipients and applicants, and asserts that it is the primary social justice system for the poor. She discusses why public assistance appellants are always placed at a significant disadvantage in this system. The article proposes that the best way to even out the inequities in adjudications is to always place the burdens of production and persuasion by clear and convincing evidence on the government in these hearings. She argues that policy, efficiency, and fairness require a consistent and heavy …

Train Wreck At The Justice Department: An Eyewitness Account, John Mckay

Seattle University Law Review

In a series of early morning phone calls on December 7, 2006, seven United States Attorneys were ordered to resign. Despite initial denials, it would later be revealed that two other U.S. Attorneys had also been ordered to submit their resignations, bringing the total number to nine. Each was given no explanation for the dismissal and most were led to believe that they alone were being dismissed, raising the specter of unstated wrongdoing and encouraging silent departures. Those dismissed uniformly cited the maxim that they "served at the pleasure of the President" and most sought to avoid publicly disputing the …

The U.S. Attorney Firings Of 2006: Main Justice's Centralization Efforts In Historical Context, James Eisenstein

Seattle University Law Review

The media, the political establishment, and the federal criminal jus-community's focus on the compelling story of the firings is hardly surprising. The details emerged over a period of many months through leaks, internal Department of Justice (DOJ) emails, press releases, interviews, and dramatic congressional testimony. The media's focus on the firings obscured their deeper significance with regard to the nature of the relations between the DOJ and its ninety-three United States Attorneys' Offices (USAOs). This Article addresses this omission by looking at the consequences of these events for the balance struck between central control by Main Justice in Washington and …

The Constitutional And Statutory Framework Organizing The Office Of The United States Attorney, Christian M. Halliburton

Seattle University Law Review

The U.S. Attorney position is one characterized by a broad delegation of the duty to enforce the laws of the United States, and to appear on behalf of the government in any civil action involving the United States or its revenues. This delegation of duties necessarily entails the exercise of discretion, and that exercise of discretion necessarily depends on the United States Attorneys' independence of judgment. The U.S. Attorney can thus be described as an agent with multiple principles, or a servant of two masters: the U.S. Attorneys clearly serve at the "pleasure" of the President, must be responsive to …

Hipaa Hypocrisy And The Case For Enforcing Federal Privacy Standards Under State Law, Daniel J. Oates

Seattle University Law Review

Part II of this Comment summarizes the background of the HIPAA statute as an attempted solution to the privacy problem described above, including its legislative history and HHS promulgation of administrative rules. Next, Part III addresses the agency-imposed limitations on the scope of the statute. The Secretary's decision to rely solely on an administrative complaint process, combined with the government's narrow interpretation of the statute granting third parties immunity from penalties, has undermined enforcement of the privacy provision. Accordingly, Part IV discusses previous attempts to circumvent the administrative limitations by creating a private right of action and the reasons these …

Beyond Chevron'S Domain: Agency Interpretations Of Statutory Procedural Provisions, Melissa M. Berry

Seattle University Law Review

Part II of the Article outlines the procedures required by the APA for agency adjudications. Part III discusses the three primary approaches that courts have followed to determine what triggers formal adjudicatory procedures and introduces the Chevron doctrine. Part IV examines how courts review agency interpretations of statutory provisions under Chevron and its progeny and explores two issues on the fringes of Chevron's domain-interpretations of agency jurisdiction and judicial review provisions-and the concerns that they raise. Next, using lessons from these analogous issues, Part V analyzes similar concerns about congressional intent, institutional competency, agency self-interest, and fairness in the …

Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai

Seattle Journal for Social Justice

No abstract provided.

Stomaching The Burden Of Dietary Supplement Safety: The Need To Shift The Burden Of Proof Under The Dietary Supplement Health And Education Act Of 1994, Morgan J. Wais

Seattle University Law Review

This article gives a brief historical perspective on dietary supplement regulation and discusses the evolution of drug regulation by the FDA. Part II concludes with a discussion of the political environment in which these regulations occur. Part III gives examples and show how the current system has caused injury and harm to consumers of dietary supplements. Part IV discusses the current burden of proof and how it was applied in the case of ephedra. Part V discusses how, under the current regulatory structure, consumers cannot be adequately protected, either by the FDA or the tort system. Part VI discusses the …

Washington State's 45-Year Experiment In Government Liability, Michael Tardif, Rob Mckenna

Seattle University Law Review

Washington's waiver of sovereign immunity has been in force for nearly forty-five years, during which time many questions have been answered. New litigation, however, continues to expand the scope of the waiver, and the extent of liability continues to raise new questions and present difficult problems. Major problems include the uncertainty of case-by-case determinations of government liability and the cost of liability for inherently risky governmental programs, such as corrections and child welfare. Part I of this Article examines the waiver against the background of prior Washington law and the pattern of immunity waivers in other jurisdictions. This examination reveals …

Revisiting Granite Falls:Why The Seattle Monorail Project Requires Re-Examination Of Washington's Prohibition On Taxation Without Representation, Matthew Senechal

Seattle University Law Review

The composition and actions of the un-elected Seattle Monorail Project (SMP) Board raise the question of whether the Washington State Constitution permits the legislature to delegate its taxing power to municipal corporations governed by unelected boards. Stated differently, the SMP Board and its actions present the question of whether the Washington State Constitution requires that local taxes be imposed only by officials who are elected by, and accountable to, the electorate burdened by the tax. While Washington's Constitution, political structures, and legal doctrine are designed to prevent "taxation without representation," the recent case of Granite Falls Library Facility Area v. …

Bono, The Culture Wars, And A Profane Decision: The Fcc's Reversal Of Course On Indecency Determinations And Its New Path On Profanity, Clay Calvert

Seattle University Law Review

This article examines the FCC's vigorous new approach to indecency and profanity determinations, including both the legal issues and the greater cultural, political, economic, and social contexts in which that approach is developing. Part I describes the FCC's initial decision regarding the Golden Globes' 2003 broadcast and then compares it with the March 2004 reversal. In the process, Part I lays the historical framework for the FCC's power over indecent expression on the public airwaves. Part II then contextualizes the FCC's new course of action within the framework of the ongoing cultural wars and political battles in the United States …

Executive Certification Requirements In The Sarbanes-Oxley Act Of 2002: A Case For Criminalizing Executive Recklessness, Christopher Wyant

Seattle University Law Review

This Comment focuses on sections 302 and 906 of the Sarbanes-Oxley Act. Section 302 requires Chief Executive Officers (CEOs) and Chief Financial Officers (CFOs), or their equivalents, to personally certify the accuracy of financial disclosure filings required by the SEC and to vouch for the reliability of the internal corporate controls that produce that information.'4 Section 906 contains an additional certification requirement and provides specific criminal penalties for willful or knowing violations of that requirement.'" An efficiency-based analysis of these two sections of the Sarbanes-Oxley Act suggests that including a recklessness standard of intent would be more likely to increase …

To Allow To Sue, Or Not To Allow To Sue: Zimmerman V. Oregon Department Of Justice Decides Title Ii Of The Americans With Disabilities Act Does Not Apply To Employment Discrimination, Cabrelle Abel

Seattle University Law Review

The article analyzes Title II and explains why, in the interests of judicial economy, the Zimmerman court correctly held that Title II does not apply to employment discrimination. First, the article discusses the particular wording of the ADA, specifically comparing the language of Title I to the language of Title II. Next, the article briefly considers the Rehabilitation Act of 1973, because Title II should be interpreted consistently with that Act. Then, using the analysis announced by the Supreme Court in Chevron v. Natural Resources Defense Council, Inc. the article examines the Title II regulations promulgated by the Department of …

Battle On The Benches: The Wagner Act And The Federal Circuit Courts Of Appeals, 1935-1942, Douglas J. Feeney-Gallagher

Seattle University Law Review

This paper examines the efforts of some circuit court judges to preserve the integrity of the judicial branch against the encroaching power of the New Deal administrative agencies, especially as represented by the National Labord Relations Board (NLRB). This paper offers a historical overview of the relationship between two circuits and the NLRB; one circuit welcomed the Board's aggressive enforcement of the Act, while the other expressed hostility towards the labor agency's powers and interpretation of the Wagner Act. An examination of the NLRB opinions in these two circuits illustrates the opposing judicial attitudes toward the new turn in labor …

What Ever Happened To The Appearance Of Fairness Doctrine? Local Land Use Decisions In An Age Of Statutory Process, W.T. Watterson

Seattle University Law Review

All states guarantee constitutional due process and fairness for both judicial and quasi-judicial proceedings. They differ, however, on the legal standard of fairness to apply to quasi-judicial proceedings. Many states rely on due process guarantees, that is, a proceeding which is fair in actual substance and procedure. Washington, however, has adopted more of the judicial standard for quasi-judicial actions, requiring "a hearing not only fair in substance, but fair in appearance as well." This "appearance of fairness doctrine" was originally developed within the context of local land use decisions. Later, it was applied to a broader spectrum of administrative proceedings. …

The Protection Of Wildlife Under Washington's Growth Management Act, Alan D. Copsey

Seattle University Law Review

Will critical areas and resource lands, as implemented under the GMA, effectively contribute to the conservation of wildlife and wildlife habitat in Washington? The remainder of this Article will address that question. First, this Article briefly describes some aspects of biological diversity that must be understood before proceeding further. Second, it sets forth several central principles from modern conservation biology that are essential for maintaining habitat integrity and species viability and considers their applicability to critical areas and resource lands, as defined by the GMA. Third, it explains how these principles could be used to identify and protect habitat remnants …