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Is A Written Constitution Necessary?, Diarmuid F. O'Scannlain Mar 2012

Is A Written Constitution Necessary?, Diarmuid F. O'Scannlain

Pepperdine Law Review

No abstract provided.


Sell V. United States: Is The Supreme Court Giving A Dose Of Bad Medicine?: The Constitutionality Of The Right To Forcibly Medicate Mentally Ill Defendants For Purposes Of Trial Competence, Dina E. Klepner Mar 2012

Sell V. United States: Is The Supreme Court Giving A Dose Of Bad Medicine?: The Constitutionality Of The Right To Forcibly Medicate Mentally Ill Defendants For Purposes Of Trial Competence, Dina E. Klepner

Pepperdine Law Review

No abstract provided.


Ewing V. California: Upholding California's Three Strikes Law, Robert Clinton Peck Mar 2012

Ewing V. California: Upholding California's Three Strikes Law, Robert Clinton Peck

Pepperdine Law Review

No abstract provided.


The Public Use Clause: Constitutional Mandate Or "Hortatory Fluff"?, Gideon Kanner Mar 2012

The Public Use Clause: Constitutional Mandate Or "Hortatory Fluff"?, Gideon Kanner

Pepperdine Law Review

No abstract provided.


Preemption And Regulatory Failure, David C. Vladeck Mar 2012

Preemption And Regulatory Failure, David C. Vladeck

Pepperdine Law Review

Daily front-page stories recounting the failure of defibrillators, pacemakers, heart stents and infusion pumps have raised questions about the adequacy of FDA regulation of medical devices. At the same time, lower courts are struggling to apply the Supreme Court's ruling in Medtronic, Inc. v. Lohr to determine the preemptive reach of the Medical Device Amendments ("MDA"). This article explores the repercussions of Medtronic and argues that Congress' use of words like "requirements" in regulatory statutes should be seen as references to positive state law only, and should not be read, absent an explicit command by Congress, to subsume state law …


Empowering States: A Rebuttal To Dr. Greve, Erwin Chemerinsky Mar 2012

Empowering States: A Rebuttal To Dr. Greve, Erwin Chemerinsky

Pepperdine Law Review

No abstract provided.


Federal Preemption: James Madison, Call Your Office, Michael S. Greve Mar 2012

Federal Preemption: James Madison, Call Your Office, Michael S. Greve

Pepperdine Law Review

No abstract provided.


Empowering States: The Need To Limit Federal Preemption, Erwin Chemerinsky Mar 2012

Empowering States: The Need To Limit Federal Preemption, Erwin Chemerinsky

Pepperdine Law Review

No abstract provided.


Congress's Power To Preempt The States, Stephen Gardbaum Mar 2012

Congress's Power To Preempt The States, Stephen Gardbaum

Pepperdine Law Review

In this Article, part of a symposium on federal preemption of state tort law, I build upon my earlier work on the nature of preemption to try and deepen the conceptual and constitutional foundations of the subject. I argue that this neglected dimension must be moved to center stage if preemption doctrine is to have a coherent and principled framework. In particular, the key issues are the nature, source, and limits of Congress's power to preempt the states. The result is that preemption should be understood as a discretionary power of Congress the source of which lies in the Necessary …


The Problem Of Federal Preemption: Reformulating The Black Letter Rules, Robert R. Gasaway Mar 2012

The Problem Of Federal Preemption: Reformulating The Black Letter Rules, Robert R. Gasaway

Pepperdine Law Review

No abstract provided.


Building A Nation From Thirteen States: The Constitutional Convention And Preemption, Edward J. Larson Mar 2012

Building A Nation From Thirteen States: The Constitutional Convention And Preemption, Edward J. Larson

Pepperdine Law Review

This article is adapted from a talk Professor Larson gave at Pepperdine’s symposium on federal preemption of state tort law - the problem of medical drugs and devices. Professor Larson begins with a discussion of the Constitutional Convention and James Madison’s role in the creation of the U.S. Constitution. He relates how fifteen resolutions, developed by Madison and the other Virginia delegates, became known as the Virginia Plan, and served as the foundation for the Constitution. Professor Larson continues by examining Madison’s notes of the Convention. Specifically he shares what the notes relate about the deliberations at the Convention regarding …


Reflections On Hines V. Davidowitz: The Future Of Obstacle Preemption, Kenneth W. Starr Mar 2012

Reflections On Hines V. Davidowitz: The Future Of Obstacle Preemption, Kenneth W. Starr

Pepperdine Law Review

No abstract provided.


The Confirmation Of Punitive Awards In Arbitration: Did Due Process Disappear?, Stuart M. Boyarsky Mar 2012

The Confirmation Of Punitive Awards In Arbitration: Did Due Process Disappear?, Stuart M. Boyarsky

Pepperdine Dispute Resolution Law Journal

Part I of this article provides a brief overview of the reasoning behind the limited judicial review of an arbitral award. Part II describes the state action doctrine and explains how several courts have used the doctrine in order to apply due process protection to proceedings involving private actors. In particular, this section discusses several significant decisions that involve the issue of whether a court's confirmation of an arbitrator's award of punitive damages creates state action and requires the application of constitutional protections such as due process. This Note concludes that due to a leading decision by the Eleventh Circuit, …


Intermittent State Constitutionalism, Justin Long Mar 2012

Intermittent State Constitutionalism, Justin Long

Pepperdine Law Review

No abstract provided.


Back To The Basics: Looking Again To State Constitutions For Guidance On Forming A More Perfect Vice Presidency, Jamin Soderstrom Mar 2012

Back To The Basics: Looking Again To State Constitutions For Guidance On Forming A More Perfect Vice Presidency, Jamin Soderstrom

Pepperdine Law Review

No abstract provided.


What Federalism & Why? Science Versus Doctrine, Stephen E. Gottlieb Mar 2012

What Federalism & Why? Science Versus Doctrine, Stephen E. Gottlieb

Pepperdine Law Review

The Constitution does not use the words federal or federalism. It gives Congress a set of powers and prohibits the national government, the states or both from doing some things. The Court has inferred principles of federalism from those provisions. The political science community has treated the advantages of federalism as contingent on whether federalism deepens or diffuses conflict or opens competition for power. The United States Supreme Court's approach does neither; it has been trying to clarify and police a very different boundary. Even on its own terms, however, the Court's justifications do not work - a problem made …


The T-Rex Without Teeth: Evolving Strickland V. Washington And The Test For Ineffective Assistance Of Counsel, Robert R. Rigg Mar 2012

The T-Rex Without Teeth: Evolving Strickland V. Washington And The Test For Ineffective Assistance Of Counsel, Robert R. Rigg

Pepperdine Law Review

In Strickland v. Washington the United States Supreme Court formulated the test for determining whether counsel in a criminal case is ineffective. When the Court decided Strickland it created a doctrine of enormous proportions, but with little impact--a legal tyrannosaurus rex without teeth. In the last decade, by using American Bar Association (“ABA”) standards to evaluate counsel's performance, the Court has given the T-Rex some sizable incisors. The purposes of this article are to: (1) determine how frequently the United States Supreme Court uses ABA standards in its decisions and describe briefly for what purposes the Court uses those standards; …


The Muted Rise Of The Silent Witness Rule In National Security Litigation: The Eastern District Of Virginia's Answer To The Fight Over Classified Information At Trial, Jonathan M. Lamb Feb 2012

The Muted Rise Of The Silent Witness Rule In National Security Litigation: The Eastern District Of Virginia's Answer To The Fight Over Classified Information At Trial, Jonathan M. Lamb

Pepperdine Law Review

The state secrets problem is emblematic of a judicial issue which is not confined to the civil cases in which the privilege is asserted - the tension between the government's interest in protecting classified information and society's interest in justice by resolution on the merits. The United States must be allowed to prosecute terrorists, conspirators, and enemies by using classified information as evidence; but how may the government act as a civil defendant without invoking the state secrets privilege to dismiss actions before trial (or pre-discovery)? The answer might be a little known evidentiary doctrine called the silent witness rule. …


Are Bills Of Attainder The New Currency? Challenging The Constitutionality Of Sex Offender Regulations That Inflict Punishment Without The "Safeguard Of A Judicial Trial", Joel A. Sherwin Feb 2012

Are Bills Of Attainder The New Currency? Challenging The Constitutionality Of Sex Offender Regulations That Inflict Punishment Without The "Safeguard Of A Judicial Trial", Joel A. Sherwin

Pepperdine Law Review

No abstract provided.


Congress's Power To Regulate The Federal Judiciary: What The First Congress And The First Federal Courts Can Teach Today's Congress And Courts , Paul Taylor Feb 2012

Congress's Power To Regulate The Federal Judiciary: What The First Congress And The First Federal Courts Can Teach Today's Congress And Courts , Paul Taylor

Pepperdine Law Review

No abstract provided.


Some Too (Or Blessedly) Short Responses To Five Thoughtful Readers, Sanford Levinson Jan 2012

Some Too (Or Blessedly) Short Responses To Five Thoughtful Readers, Sanford Levinson

Pepperdine Law Review

No abstract provided.


Levinson Is To Mr. Justice "Isaiah" As St. Paul Was To The Prophet Isaiah, Richard H. Weisberg Jan 2012

Levinson Is To Mr. Justice "Isaiah" As St. Paul Was To The Prophet Isaiah, Richard H. Weisberg

Pepperdine Law Review

No abstract provided.


The Variable Morality Of Constitutional (And Other) Compromises: A Comment On Sanford Levinson's Compromise And Constitutionalism, Carrie Menkel-Meadow Jan 2012

The Variable Morality Of Constitutional (And Other) Compromises: A Comment On Sanford Levinson's Compromise And Constitutionalism, Carrie Menkel-Meadow

Pepperdine Law Review

This comment to Sanford Levinson's Brandeis lecture at Pepperdine focuses on the role and types of compromises made during several stages of constitutional processes, formative and constitutive, interpretive and on-going, as negotiated by Constitutional meaning makers (drafters and Supreme Court 'deciders'), and post hoc justifications. This essay discusses recent work on compromise as institutional design, pragmatic or principled, and regime defining and sustaining. Both the pejorative (compromise is unprincipled) and more positive (compromise accounts for the 'reality' and moral existence of different sides of an issue or polity) understandings of compromise are reviewed, in light of Professor Levinson's scholarship on …


Lessons From Lincoln: A Comment On Levinson, Steven D. Smith Jan 2012

Lessons From Lincoln: A Comment On Levinson, Steven D. Smith

Pepperdine Law Review

No abstract provided.


Constitutional Democracy, Human Dignity, And Entrenched Evil, Mark A. Graber Jan 2012

Constitutional Democracy, Human Dignity, And Entrenched Evil, Mark A. Graber

Pepperdine Law Review

The following essay pays tribute to Sandy Levinson's thoughts on constitutional compromises by paying tribute to the thoughts on constitutional compromises by our common mentor, Walter Murphy. Rather than directly engage in a dialogue with Compromise and Constitutionalism, the analysis below joins the preexisting dialogue between Professors Levinson and Murphy on how to construct a decent polity among people who have deep disputes over what constitutes political decency. Walter Murphy is unfortunately largely known to legal audiences only through the work of such outstanding mentees as Sandy Levinson, Jim Fleming, Christopher Eisgruber, Andrew Koppelman, Jennifer Nedelsky, and Robert George. Walter …


Compromise And Constitutionalism, Sanford Levinson Jan 2012

Compromise And Constitutionalism, Sanford Levinson

Pepperdine Law Review

Professor Levinson explores compromises (1) that went into the making of the United States Constitution, and (2) that have occurred in the Supreme Court's constitutional interpretation. He explores these compromises in light of Israeli philosopher Avishai Margalit's distinction between bad compromises and rotten compromises. "Rotten compromises" are indefensible except, perhaps, in the most exceptional of conditions. A "rotten political compromise" is one that agrees "to establish or maintain an inhuman regime, a regime of cruelty and humiliation, that is, a regime that does not treat humans as humans." Under this standard, Levinson identifies as rotten compromises the Constitution's protection of …


The Cost Of Compromise And The Covenant With Death, Paul Finkelman Jan 2012

The Cost Of Compromise And The Covenant With Death, Paul Finkelman

Pepperdine Law Review

This article is a rebuttal to the writings of those advocating the view that America was formed through compromise and that compromise in modern constitutional law is, therefore, necessary and beneficial. A recount of the “compromises” at the Constitutional Conventional that eventually led to the approval and protection of slavery begins the analysis establishing the danger of Americans compromising over constitutional protections. The article continues on, discussing the Compromise of 1850 and its drafters whom others have considered “passionately devoted to the Union”, like John Calhoun, who would later assert that the Constitution was expendable. The Compromise of 1850 did …


Introduction: Blessed Are The Compromisers?, Robert F. Cochran Jr. Jan 2012

Introduction: Blessed Are The Compromisers?, Robert F. Cochran Jr.

Pepperdine Law Review

No abstract provided.