Administrative Law Commons^™

Fraud In Feeding Our Future: An Analysis Of “The Largest Pandemic Relief Fraud Scheme Yet”, Alena Johnston

Criminal Law Practitioner

Since the 1930s, the public school system in the United States has provided a distinct place for students to develop, learn, and grow.  Public schools level the playing field for students in academics, allowing them to receive an education at no direct cost. However, students from economically disadvantaged backgrounds continue to face challenges, and their inability to secure nutritious meals can affect their ability to perform academically. In 1946, President Harry Truman signed the National School Lunch Act, forming the first Child Nutrition Program in the United States to remedy the food security issue.

 The program was implemented as “a …

Through A Glass Darkly: How Securities Disclosures Give A Distorted View Of The Economy, Gerald F. Davis

Seattle University Law Review

Our understanding of the American economy often relies on stylized facts derived from mandatory disclosures by listed corporations. Data vendors like Standard & Poor’s vacuum up 10Ks and proxy statements into databases, and scholars distill these into tentative maps. This may have been adequate for a postwar economy centered on asset-heavy manufacturers, but it is increasingly out of step with an information-based economy. Companies listed on the stock market are fewer in number and less representative than they were, light in tangible assets and people, and heavy on IP. Basic facts such as what industry they are in are increasingly …

Forum Shifting To Regulate Data Privacy: The Creation And Evolution Of Eu Data Protection Law, Raymond Yang Gao

Northwestern Journal of International Law & Business

Currently, the European data protection regime has become one of the most influential legal frameworks regulating data privacy protection and cross-border personal data transfers. Despite a burgeoning body of scholarship on EU data protection law, the questions of why and how the EU adopted this regulatory approach remain understudied. Contrary to conventional wisdom, European data protection regulation is neither preordained by Europe’s historical or cultural legacies, nor simply a result imposed by powerful EU member states out of national economic interests. Instead, this work argues that this legal regime is the result of contentious lawmaking processes aimed at addressing regulatory …

Beyond Agency Authority: Regulating Sulfur Hexafluoride Under An Enhanced Title Ii Framework Of The Clean Air Act, Matthew Gawley

Fordham Environmental Law Review

This paper explores the critical need for robust Congressional action to regulate sulfur hexafluoride (SF6), a greenhouse gas with a global warming potential more than 20,000 times greater than carbon dioxide. Recent Supreme Court decisions––in West Virginia v. EPA and Loper Bright Enterprises v. Raimondo––to restrict EPA authority and end the Chevron doctrine have curtailed federal environmental agencies’ regulatory authority, shifting the responsibility for addressing major environmental challenges back to Congress. Despite being addressed under Title I of the Clean Air Act (CAA) through the 2022 Inflation Reduction Act (IRA), current SF6 regulations prove grossly inadequate. The utilities industry––the largest …

The Score Act Is Unconstitutional: Private Nondelegation Problems With Congress’S Latest Attempt To Regulate College Sports, Sam C. Ehrlich, Ryan M. Rodenberg

Cardozo Law Review de•novo

The Student Compensation and Opportunity through Rights and Endorsements Act (“SCORE Act”) is Congress’s most ambitious effort yet to bring stability to college sports, codifying the recent House settlement while granting sweeping regulatory power to private athletic associations such as the National Collegiate Athletic Association (“NCAA”) and the College Sports Commission (“CSC”). However, by delegating policymaking authority to these private, self-interested entities without any sort of public oversight, the bill raises serious constitutional concerns under the private nondelegation doctrine. Drawing on parallels to a string of litigation involving the Horseracing Integrity and Safety Act (“HISA”) and recent Supreme Court signals, …

Funkcjonowanie Doręczeń Elektronicznych W Ujęciu Technicznym, Michał Tabor

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article provides a legal-technical and market analysis of electronic delivery in Poland, concluding that while the system complies with the basic requirements of the eIDAS Regulation, it needs significant organizational and technical improvements. The author reviews the National Electronic Delivery System, the role of the designated operator and qualified trust service providers, and highlights issues with interoperability, address registration and portability, delivery mailboxes, and the hybrid delivery service. Recommended legal reforms include granting the public delivery service qualified status, enabling multiple delivery addresses for public and complex organizations, partly opening the market to commercial qualified providers, and moving supervision …

Administrative Forum Shopping, Amy L. Stein

Fordham Law Review

Allowing private parties in litigation to stack the deck in their favor through forum shopping is standard fare in the United States. But not everyone realizes that public legislators engage in a similar exercise when they stack the deck in one party’s favor through “jurisdiction-stripping” or “jurisdiction-channeling” provisions. Congress can strip federal courts of all or some of its jurisdiction, channel jurisdiction over a particular class of cases into one particular court, and even strip the U.S. Supreme Court of its appellate jurisdiction. Understandably, this last category has received the most attention, as scholars are drawn to the penultimate conflict …

Article Iii Standing For Cercla Private Cost Recovery Actions: How The Test's Strained Logic Belies Its Authority, Jonathan M. Palacios

Fordham Environmental Law Review

This Note examines how Article III standing doctrine applies to

private plaintiffs’ cost recovery actions under § 107(a)(4)(B) of the

Comprehensive Environmental Response, Compensation, and

Liability Act. A review of judicial decisions reveals inconsistencies

in the analysis of injury in fact and traceability, and suggests that

current Article III standing doctrine is misaligned with its purported

objectives. In response, this Note proposes a structured framework

for assessing injury in fact and a refined approach to analyzing

traceability that distinguishes between different forms of causal

uncertainty. These doctrinal adjustments should better align case

outcomes with Article III standing doctrine’s constitutional and …

Answered By Text, Jennifer L. Mascott, Eli Nachmany

Scholarly Articles

This Essay takes stock of a pivotal moment at the Court: statutory interpretation at center stage in administrative law. The U.S. Supreme Court’s most recent Term saw numerous landscape-shifting administrative law decisions. The most widely discussed was the Court’s elimination of 40-year-old Chevron deference in Loper Bright Enterprises v. Raimondo. The Court’s decisions also effected significant change in the scope of Seventh Amendment jury trial rights and the length of time that individuals, businesses, and associations have to challenge agency actions. But taken together, the Court’s decisions did not radically restructure the administrative state on constitutional grounds. Despite the substantial …

Foia Fellows As Freedom Fighters: An Independent And Privately Funded Foia Commission Of Rotating Professionals, Jack Wroldsen

Marquette Law Review

The Freedom of Information Act (FOIA) is a hallmark of U.S. democracy, designed as an outsider element that foists transparency on a government bureaucracy whose centripetal forces spin inexorably toward self-preservation and secrecy. The United States pioneered the worldwide Freedom of Information (FOI) movement in 1966, but other countries have since surpassed the United States in FOI design and performance. For example, when the author’s colleague sent parallel FOI requests to six Western democratic countries, all but the United States responded substantively within days, weeks, or months; the United States took four and a half years.

This Article analyzes the …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Corporate Scenarios: Drawing Lessons From History, Madison Condon

Seattle University Law Review

As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of …

Shareholder Expression In A Time Of Heightened Political Tension, Aaron A. Dhir

Seattle University Law Review

In this article, I provide context for my forthcoming research project on shareholder proposals and racial equity audits. Since the murder of George Floyd in May of 2020, progressive shareholder actors have increasingly used the proposal mechanism to advance diversity, equity, inclusion, and justice-related goals. These proposals have frequently gone beyond requesting the usual corporate fare of diversity trainings, intersectionality workshops, affinity groups, etc. Instead, a more ambitious type of proposal asks corporate America to conduct racial equity audits, defined as “an independent, objective and holistic analysis of a company’s policies, practices, products, services and efforts to combat systemic racism …

Corporate Governance Speech, Sarah C. Haan

Seattle University Law Review

The State has always regulated the intra-firm communications that make corporate governance possible, most commonly by mandating disclosures of information by a corporation to its shareholders. Some such laws are labeled “securities regulation,” but securities regulation is a broad category that extends to speech by actors who are outside the corporate enterprise as well. Also, the conventional securities regulation category does not capture all such laws; other examples, including informationforcing mandates, can be found in state corporate law. This Article uses the term “corporate governance speech” to describe the communications among shareholders, directors, and officers through which corporate governance is …

Dark Accounting Matter, Colleen Honigsberg

Seattle University Law Review

Physicists calculate that approximately 85% of the matter in the universe is composed of “dark matter” that “does not absorb, reflect, or emit electromagnetic radiation and is therefore difficult to detect.” The S&P 500 currently trades at a price-to-book value of 4.2, suggesting that book value accounts for less than 20% of the S&P 500’s market value. The remaining 80% appears nowhere in these firms’ balance sheets—it is invisible to contemporary accounting techniques and constitutes “dark accounting matter.”

Some “dark accounting matter” is composed of factors commonly described as components of “ESG.” Human capital, for example, is an intangible asset …

The Employees’ Dilemma: Balancing Internal Reporting, Whistleblowing, And Insider Trading Risks, Geeyoung Min

Seattle University Law Review

The Essay examines how recent developments in insider trading regulations and whistleblower reward programs can lead to unintended and counterproductive results of discouraging employees from using internal reporting channels within corporate compliance programs. While the presence of a robust and well-functioning corporate compliance program is a critical factor both in mitigating the level of public enforcement actions against companies and in protecting corporate managers from liability in private litigation, these programs often provide little incentive for employees to report potential misconduct internally.

Corporate compliance programs are designed to promote the upward information flow within the company, which is essential for …

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

Regulatory Personhood: The Elixir For Redundancy Between The Sec And The Pcaob, Sarah Williams

Faculty Scholarly Works

The Public Company Accounting Oversight Board (“PCAOB” or “Board”) is a quasi-governmental regulatory agency created by Congress in 2002 in response to revelations of widespread financial fraud at major public companies. Since its creation, the agency has experienced significant challenges. Litigants have challenged its constitutionality, the Trump administration challenged its very existence, and legislation was introduced in 2021 to transfer its responsibilities to the U.S. Securities and Exchange Commission (“SEC”).

Proposals to eradicate the Board asserted vague concerns about the redundancy of its responsibilities with those of the SEC, and alleged resultant monetary waste. This Article, written in 2022, provides …

Military Service Academies: The Final Battleground For Affirmative Action, Krista Trefen

American University Law Review

The future of affirmative action in the United States military service academies faces critical uncertainty following the Supreme Court's decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, which ended race-conscious admissions practices in higher education. Although the Court explicitly excluded the service academies from its holding, reserving space for race-conscious practices tied to national security-the Naval Academy, Military Academy, and Air Force Academy have recently indicated they will discontinue the use of affirmative action in response to changes in Department of Defense policy.

This Comment examines the historical and statutory foundations of the military …

Presidential Control And Administrative Capacity, Nicholas Bednar

Articles

Presidential control is the power to direct administrative capacity toward the President’s own policy objectives. Accordingly, presidential power vis-à-vis administrative policymaking has two necessary components: control and capacity. First, the President must have the ability to set the agency’s policymaking agenda and direct the day-to-day activities of its leadership and career employees. Second, the agency needs a well-managed team of policymakers with expertise and experience in both the substantive policy area and the policymaking process. Yet scholars have long assumed—without much empirical testing—that the administrative state has sufficient capacity to implement the President’s agenda. Not so.

This Article argues that …