75 Am. U. L. Rev. 1137 (2026).
Abstract
A half-century of remodeling agency workforces against corporate blueprints has hollowed out the civil service, enervated oversight, and facilitated the rise of tech oligarchy. Progressive commentors have criticized the neoliberal turn and proposed reinvigorating reforms, but they’ve overlooked a foundational obstacle: federal hiring dysfunction. Hiring dysfunction entrenches low-resource, deferential regulatory tactics, makes sharper or more onerous approaches less feasible, and undermines recruitment of technical staff for policy and regulatory functions. Concerns about hiring dysfunction and capacity dampen regulatory ambitions. Finally, hiring dysfunction creates plausible-seeming capacity pretexts to oppose novel or more confrontational tactics. The cumulative effects cement regulatory dismantlement to the benefit of unaccountable private power and the detriment of everyone else.
Federal hiring critiques are neither novel nor rare, but this Article is the first to filter them through a law and political economy lens. Prominent narratives tend to evangelize private sector hiring strategies and tie agencies’ precarious political legitimacy to their adoption. I connect those narratives and associated reforms to what I call federal hiring’s “selfshrinking skew”—a fixation with containing agency discretion and performing thrift that drives brittle procedures and erratic hiring outcomes, even when hiring is highly prioritized.
Current hiring approaches cannot replenish workforces razed by the Trump administration, and reliance on those approaches will imperil valiant efforts to upend neoliberalism’s crabbed regulatory tactics. Progressive efforts to reoxygenate the regulatory state and sharpen its confrontations with tech oligarchy must therefore grapple with federal hiring dysfunction and reject the extractive ideologies that perpetuate it.
* Assistant Professor of Law, Thomas R. Kline School of Law, Drexel University. Thank you enormously to Tabatha Abu El-Haj, David Cohen, Liz Kukura, Amy Landers, Laura Moy, Paul Ohm, Blake Reid, Dan Rodriguez, Amanda Tepski, Dan Walters, Ari Waldman, as well as commenters at the University of Baltimore School of Law Faculty Workshop, the Drexel Faculty Workshop, 2024 Richmond Junior Faculty Forum, the Privacy Law Scholars Conference 2024, and the AALS 2026 “New Voices in Administrative Law” Roundtable. I’m exceptionally grateful to the wonderful people who took the time to speak to me for this project and the diligent American University Law Review editors who shepherded it into the world.