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Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Table Of Contents

Seattle University Law Review

Table of Contents

Madison 2.0—Applying The Constitution’S Taxing And Spending Clause To Revitalize American Federalism, Mohamed Akram Faizer

Seattle University Law Review

This article introduces the proposal entitled Madison 2.0 which calls for an enlightened federal government to enact legislation—using its broad ability to tax and spend for the general welfare—to revitalize, as opposed to undermine, American federalism. Part I discusses American Federalism today and the need for an updated approach. Part II explores the government's dysfunctional response to the Covid-19 pandemic. Part III proposes how to revitalize American federalism through the Spending Clause. Part IV discusses how to claw back funds in situations of state recalcitrance and replacing funds with a basic income. Lastly, this article concludes by explaining why the …

A Call To Replace The Apa’S Notice-And-Comment Exemption For Guidance Documents, Crystal M. Cummings

Brooklyn Law Review

Section 553 of the APA requires public “notice-and-comment” before a federal agency issues substantive rules and exempts from these procedures guidance documents that merely offer nonbinding insight and assistance on existing law. The problem of federal agencies using the notice-and-comment exemption to issue legislative rules that are legally binding has garnered considerable attention. Congressional efforts to amend the APA in response have failed and, in turn, variations have been offered on a seemingly simple fix—mandate or encourage agencies to solicit public input before issuing guidance documents. This note characterizes these proposals as overlays on the § 553(b)(A) exemption. The note …

Section 230 And The Problem Of Social Cost, Stanley M. Besen, Philip L. Verveer

Journal of Law and Policy

This Article employs, with certain modifications, the framework developed in Ronald Coase’s classic article, “The Problem of Social Cost,” to analyze the current debate over Section 230 of the Communications Decency Act. This provision absolves interactive computer services, also known as platforms, from liability when they disseminate materials that cause “harm” to third parties, “harm” that can take the form of compensable damage of a sort found in ordinary tort cases but also can include broader injuries to social order and cohesion in the form of such things as hate speech and misinformation. The Article begins by pointing out that, …

On The Outer Reaches Of The Marketplace Of Ideas: The Weaponization Of Title Vi Against Palestinian College Activists, Gavriella Fried

Journal of Law and Policy

On U.S. college campuses, Palestinian rights activists who are critical of Israel risk legal consequences. Title VI of the Civil Rights Act prohibits discrimination on the basis of race, color, or national origin in any program receiving federal funds. Over the past two decades, at least eighteen Title VI complaints have been filed against U.S. colleges and universities, alleging that Palestinian rights activists’ political expression is a form of anti-Semitism. In December 2019, President Trump promulgated Executive Order 13,899, which formally extended Title VI protections to Jews and directed enforcement agencies to investigate allegations of anti-Semitism using guidance that includes …

Baby & Bathwater: Standing In Election Cases After 2020, Steven J. Mulroy

Dickinson Law Review (2017-Present)

The current consensus among commentators is that the flood of cases challenging the 2020 presidential election results was almost completely meritless. This consensus is correct as to the ultimate result, but not as to the courts’ treatment of standing. In their (understandable) zeal to reject sometimes frivolous attempts to overturn a legitimate election and undermine public confidence in our electoral system, many courts were too quick to rule that plaintiffs lacked standing. These rulings resulted in unjustified sweeping rulings that voters were not injured even if their legal votes were diluted by states accepting illegal votes; that campaigns did not …

Biden Administration U.S. Space Force Policy Literature, Bert Chapman

Libraries Faculty and Staff Presentations

Provides details on U.S. Space Force policy literature produced by the Biden Administration during its first eight months. Includes announcements that the Biden Administration will continue this new armed services branch begun during the Trump Administration. Features congressional testimony of Biden Administration officials such as Secretary of Defense Lloyd Wilson and Air Force Space Command leader General James Dickinson, the text of Space Force's 2021 Digital Force Vision document, congressionally approved FY 2022 space force budget figures, congressional committee comments and report requirements contained in emerging defense spending legislation, the emergence of collaboration between Space Force and universities such as …

Could Changes To The Endangered Species Act Actually Threaten Species?, Manuel L. Colon Jr.

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Making The Extraordinary Ordinary: Examining The Impact Of Shifting Immigration Policies On Professional Athletics In The United States, Rachel Insalaco

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky

Seattle University Law Review

This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.

We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to …

Neither Safe, Nor Legal, Nor Rare: The D.C. Circuit’S Use Of The Doctrine Of Ratification To Shield Agency Action From Appointments Clause Challenges, Damien M. Schiff

Seattle University Law Review

Key to the constitutional design of the federal government is the separation of powers. An important support for that separation is the Appointments Clause, which governs how officers of the United States are installed in their positions. Although the separation of powers generally, and the Appointments Clause specifically, support democratically accountable government, they also protect individual citizens against abusive government power. But without a judicial remedy, such protection is ineffectual—a mere parchment barrier.

Such has become the fate of the Appointments Clause in the D.C. Circuit, thanks to that court’s adoption—and zealous employment—of the rule that agency action, otherwise unconstitutional …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents and Special Thanks.

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review (2017-Present)

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Structural Deregulation, Jody Freeman, Sharon Jacobs

Publications

Modern critics of the administrative state portray agencies as omnipotent behemoths, invested with vast delegated powers and largely unaccountable to the political branches of government. This picture, we argue, understates agency vulnerability to an increasingly powerful presidency. One source of presidential control over agencies in particular has been overlooked: the systematic undermining of an agency’s ability to execute its statutory mandate. This strategy, which we call “structural deregulation,” is a dangerous and underappreciated aspect of what then-Professor, now-Justice Elena Kagan termed “presidential administration.”

Structural deregulation attacks the core capacities of the bureaucracy. The phenomenon encompasses such practices as leaving agencies …

Prosecuting Executive Branch Wrongdoing, Julian A. Cook, Iii

University of Michigan Journal of Law Reform

Attorney General William Barr’s handling of Robert Mueller’s Report on the Investigation into Russian Interference in the 2016 Presidential Election was undeniably controversial and raised meaningful questions regarding the impartiality of the Department of Justice. Yet, Barr’s conduct, which occurred at the conclusion of the Mueller investigation, was merely the caboose at the end of a series of controversies that were coupled together from the outset of the investigation. Ensnarled in dissonance from its inception, the Mueller investigation was dogged by controversies that ultimately compromised its legitimacy.

Public trust of criminal investigations of executive branch wrongdoing requires prosecutorial independence. To …

Red Scare Or Red Herring: How The “China Initiative” Strategy For Non-Traditional Collectors Is Stifling Innovation In The United States, Bianca Tillman

Seattle Journal of Technology, Environmental, & Innovation Law

In 2018, the U.S. Department of Justice launched the “China Initiative” in response to the growing economic and national security threat posed by China. The China Initiative is a sweeping federal plan designed, in part, to protect the United States’ status as a leader in global innovation and scientific discourse. The U.S. is justified in its concern over China’s unfair practices to achieve military, technological, and economic prominence. While U.S. and Chinese intelligence agencies have spied on each other for decades, China has increased both the scope and the sophistication of its efforts to steal secrets from the U.S. in …

Splendid Isolation: Va’S Failure To Provide Due Process Protections And Access To Justice To Veterans And Their Caregivers, Yelena Duterte

Journal of Law and Policy

Imagine you are a spouse and caregiver of a severely injured post-9/11 veteran. Your spouse served in the Marine Corps, with several deployments to Iraq. During their last deployment, your spouse sustained a severe traumatic brain injury and suffers from post-traumatic stress disorder. Due to these injuries, they need consistent care throughout the day. Thankfully, upon their return, the VA provided a caregiver program that allowed you to step away from your job and focus on caring for your spouse full time. As part of this program, you received a caregiver stipend of $2,400 per month, healthcare, and support from …

A Constitutional Right To A Functioning United States Government? Are Government Shutdowns Unconstitutional?, Allen Shoenberger

Brigham Young University Journal of Public Law

No abstract provided.

The Weaponization Of The “Alien Harboring” Statute In A New-Era Of Racial Animus Towards Immigrants, Hannah Hamley

Seattle University Law Review

Federal law 8 U.S.C. § 1324(a)(1)(A)(iii), commonly referred to as the “Alien Harboring” statute, was passed sixty-eight years ago and has been used as a weapon against immigrants and their allies. Spanning back decades, numerous scholars, alarmed by the dangerous use of the statute, have written about its muddled congressional intent and the unclear definition of “harboring.” These issues continue to be relevant and are foundational concerns with the enforcement of the harboring statute. However, in the era of President Donald J. Trump, we are faced with a new danger. We are confronted with an Administration that is ferociously anti-immigrant …

Court-Packing In 2021: Pathways To Democratic Legitimacy, Richard Mailey

Seattle University Law Review

This Article asks whether the openness to court-packing expressed by a number of Democratic presidential candidates (e.g., Pete Buttigieg) is democratically defensible. More specifically, it asks whether it is possible to break the apparent link between demagogic populism and court-packing, and it examines three possible ways of doing this via Bruce Ackerman’s dualist theory of constitutional moments—a theory which offers the possibility of legitimating problematic pathways to constitutional change on democratic but non-populist grounds. In the end, the Article suggests that an Ackermanian perspective offers just one, extremely limited pathway to democratically legitimate court-packing in 2021: namely, where a Democratic …

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.

U.S. Government Military And Space Force Literature, Bert Chapman

Libraries Faculty and Staff Presentations

Established in 2018, the U.S. Space Force is the newest branch of the U.S. military. The reality of space as an arena for international geopolitical and military competition has been around for decades in scholarly literature. This presentation will examine recently published and publicly accessible U.S. Government and military literature on Space Force. These works examine various economic, military, and political aspects of this entity and how it may affect U.S. national security policy in years to come.

Public Policy Origins Of U.S. Data, Bert Chapman

Libraries Faculty and Staff Presentations

Provides detailed introduction and overview of public policy origins of U.S. data. Shows how congressional legislation and Office of Management and Budget documents influence compilation and dissemination of U.S. Government data. Stresses how Indiana General Assembly requirements influence compilation of Indiana state agency data and Indiana local government agency data. Places emphasis on roles played in data compilation and dissemination by public policy research institutions/think tanks. Concludes by stressing limitations of data collection by governmental and non-governmental entities.

Jail By Another Name: Ice Detention Of Immigrant Criminal Defendants On Pretrial Release, Kerry Martin

Michigan Journal of Race and Law

This Article assesses the legality of an alarming practice: Immigration and Customs Enforcement (ICE) routinely detains noncitizen criminal defendants soon after they have been released on bail, depriving them of their court-ordered freedom. Since the District of Oregon’s decision in United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012), a growing group of federal courts has held that when ICE detains federal criminal defendants released under the Bail Reform Act (BRA), it violates their BRA rights. These courts have ordered that the government either free the defendants from ICE custody or dismiss their criminal charges. This …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Publicly Accessible National Security Information Resources: An Untapped Treasure Trove, Bert Chapman

Libraries Faculty and Staff Presentations

This presentation demonstrates the wide variety of publicly accessible U.S. Government national security information resources. It includes information on the U.S. constitutional foundations of national security policy, a recent annual defense spending bill, documents from the White House/National Security Council, Department of Defense, various military branches including professional military educational institutions, assorted U.S. intelligence agencies, congressional legislation, congressional committee reports on legislation, congressional committee hearings, and reports from congressional support agencies such as the Congressional Budget Office. It concludes by stressing the multiple benefits provided by having public access to these information resources.

Literature Review: How U.S. Government Documents Are Addressing The Increasing National Security Implications Of Artificial Intelligence, Bert Chapman

Libraries Faculty and Staff Scholarship and Research

This article emphasizes the increasing importance of artificial intelligence (AI) in military and national security policy making. It seeks to inform interested individuals about the proliferation of publicly accessible U.S. government and military literature on this multifaceted topic. An additional objective of this endeavor is encouraging greater public awareness of and participation in emerging public policy debate on AI's moral and national security implications..

Minority Vetoes In Consociational Legislatures: Ultimately Weaponized?, Devin Haymond

Indiana Journal of Constitutional Design

In societies emerging from or at risk for conflict, dividing power among rival groups—called power-sharing—can be an appropriate arrangement to maintaining peace. But how can groups, who are often emerging from violent conflict, trust sharing a government with rival groups that were just recently shooting at them?

A potential solution is the minority veto, which is allows minority groups to block the government from harming those groups’ vital interests. But what sorts of change blocking mechanisms constitute a minority veto? Who gets the veto power, and when can they be used? Do minority vetoes function as effective incentives for ensuring …