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Epigenetics and Reparations: How Epigenetics Can Help Federal Plaintiffs Meet the Constitutional Article III Standing Requirements in Reparation Lawsuits
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Overseeing the Administrative State
Get PDFIn a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance of agency regulation was premised on the belief that the expertise of administrative agencies coupled with their insulation from political influence afforded them distinctive regulatory advantages.
Today there are questions about the extent to which agencies continue to reflect these characteristics. Instead, as the Article explains, agency decisionmaking has become increasingly polarized and the product of political influence rather than scientific or technical expertise. The possibility that Congress and the President are using agencies as political tools to avoid the accountability associated with direct legislation is potentially troubling. One response is the reduction in agency power suggested by the Court. Alternatively, this Article suggests modest practical reforms to align agencies with the legitimating principles of the New Deal settlement
Student Life E-Newsletter April 01, 2024
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Student Life E-Newsletter March 25, 2024
Get PDFhttps://digitalcommons.law.seattleu.edu/studentlife/1153/thumbnail.jp
The Marijuana Insurgency: Federalism and Social Reframing in Policy Reform
Get PDFAfter fifty years of federal prohibition, marijuana reform efforts have won political and legal success. These victories hold lessons for anyone seeking to resist federal law without being able to directly affect it.
Victory can come from reframing an issue. For marijuana reform, social reframing—not formal legal analysis or material factors—provides the best explanation for how advocates achieved change. Their unconventional political tactics, akin to those used by insurgents in wartime, undercut federal prohibition by winning hearts and minds.
This is an analysis of the sociology of legal change. It is also the story of how ordinary Americans retook personal liberty from the centralized state. Despite what anti-liberal critics have argued, local self-governance and individual freedom can sometimes go hand-in-hand
Reconciling Disjunct Cryptocurrency Securities Enforcement with Purchaser Expectations
Get PDFThe Southern District of New York’s July 2023 decision in SEC v. Ripple Labs, Inc. has been touted as a monumental win for cryptocurrency purchasers and related businesses. The Ripple court held that, except institutional investor transactions, all sales of Ripple’s XRP token were not investment contracts, a class of security subject to federal securities law. The court’s ruling meant that Ripple could not be held liable for the unregistered trading of XRP beyond its sales to institutional investors. Ripple adds new insights to a pervasive policymaking dilemma addressed in this Note: is the Securities and Exchange Commission’s (SEC) regulatory approach effectively serving purchasers? This Note answers this question in the negative and explores the disconnect between the SEC’s approach and the actual protection of purchasers. First, it briefly surveys the value of cryptocurrency like XRP to outline the many forms digital assets take beyond a passive, speculative investment. Second, it outlines the framework for SEC enforcement under the Supreme Court’s Howey test for “investment contracts” and securities registration requirements in Section 5 of the Securities Act. Third, it examines the Ripple court’s holding regarding reasonable expectation of profit to distinguish XRP trading activity from investment contracts under Howey. Fourth, it contends that the Ripple court’s focus on enforcing securities law to protect reasonable investor expectations of profit is a proper step toward addressing a larger regulatory disconnect between the SEC and the investing public it is entrusted to serve
Assessing the Potential Consequences of Students for Fair Admissions (SFFA) on the Small Business Development Program
Get PDFSmall businesses play a pivotal role in the United States job market, constituting the largest source of employment throughout the national economy and employing more than 60 million Americans. However, small socially and economically disadvantaged firms, particularly those owned and operated by minoritized entrepreneurs, face substantial underrepresentation and challenges in securing government contract awards. Minority-owned firms have historically had difficulty in securing capital investments in comparison to non-minority-owned businesses due to having had to contend with the ongoing effects of systemic racism over generations. Acknowledging the tremendous value of small socially and economically disadvantaged businesses to the overall health and vitality of the economy, Congress and multiple presidential administrations have committed to investing in these businesses over a period spanning seven decades. Through the targeted provision of technical expertise, access to much-needed capital, and perhaps most importantly, through contract opportunities exclusively available to qualifying minority-owned businesses, minoritized business owners have been able to gain a footing in the national economy. The Small Business Administration\u27s Section 8(a) Program has largely been responsible for effectuating this important national policy priority. Despite having significant congressional support, the Small Business Development Program has not been without its challenges. Over the years, some consternation and litigation have challenged the restrictive definitions of companies that can be enrolled in and receive the benefits of this extensive government program. The primary constitutional challenge has been centered on the affirmative action nature of a program designed to promote the interests of companies based largely on racial classifications. Although the Small Business Development Program has in the past successfully navigated constitutional challenges, the Supreme Court’s recent decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (“SFFA”) suggests that programmatic and legislative changes may be necessary to ensure the long-term survivability of the program. The Small Business Development Program, one of numerous race-conscious federal programs that have been developed to remediate structural inequalities, will almost certainly be subject to future legal challenges in the wake of SFFA. This Article delves into the historical evolution and structure of the Small Business Development Program in light of the Supreme Court\u27s rejection of race-based remedial measures. Fundamentally, this Article argues that, despite the Supreme Court\u27s recent affirmative action decision in SFFA, the Small Business Administration\u27s Section 8(a) Program remains socially desirable, economically and ethically necessary, and legally permissible