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Articles 1 - 30 of 44
Full-Text Articles in Law
Impartial Justice: Restoring Integrity To Impeachment Trials, Justin D. Rattey
Impartial Justice: Restoring Integrity To Impeachment Trials, Justin D. Rattey
Pepperdine Law Review
In recent decades, we have witnessed the diminution of the impeachment process by various actors—especially political parties. But the Founders envisioned a vastly different process, one that was insulated from partisanship. In Alexander Hamilton’s words, impeachment trials were assigned to the Senate because the Senate is “a tribunal sufficiently dignified [and] sufficiently independent.” Examples from the most recent impeachment trials of President Donald J. Trump reflect the Senate’s loss of dignity and independence, with Senator McConnell pledging to work with the White House throughout the first impeachment process and senators from both parties conceding that they made up their minds …
“Drive-By” Jurisdiction: Congressional Oversight In Court, Daniel Epstein
“Drive-By” Jurisdiction: Congressional Oversight In Court, Daniel Epstein
Pepperdine Law Review
On July 9, 2020, in Trump v. Mazars USA, LLP and Trump v. Deutsche Bank AG, the Supreme Court held that the lower courts did not adequately consider the separation of powers concerns attendant to congressional subpoenas for presidential information. Given that the question presented in Mazars concerned whether Congress had a legitimate legislative purpose in subpoenaing the President’s personal records, the Supreme Court’s decision is anything but a model of clarity. The Court simultaneously opined that disputes “involving nonprivileged, private information” “do[ ] not implicate sensitive Executive Branch deliberations” while claiming “congressional subpoenas for the President’s information unavoidably pit …
Court Expansion And The Restoration Of Democracy: The Case For Constitutional Hardball, Aaron Belkin
Court Expansion And The Restoration Of Democracy: The Case For Constitutional Hardball, Aaron Belkin
Pepperdine Law Review
Neither electoral politics, norms preservation, nor modest good government reform can restore the political system because they cannot mitigate the primary threat to the American democracy, Republican radicalism. Those who believe otherwise fail to appreciate how and why radicalism will continue to impede democratic restoration regardless of what happens at the ballot box, misdiagnose the underlying factors that produce and sustain GOP radicalism, and under-estimate the degree of democratic deterioration that has already taken place. Republicans do not need to prevail in every election to forestall the restoration of democracy or to prevent Democrats from governing. The only viable path …
A Call For America's Law Professors To Oppose Court-Packing, Bruce Ledewitz
A Call For America's Law Professors To Oppose Court-Packing, Bruce Ledewitz
Pepperdine Law Review
A Court-packing proposal is imminent. Mainstream Democratic Party Presidential Candidates are already supporting it. The number of Justices on the Supreme Court has been set at nine since 1869, but this is merely a statutory requirement. As soon as Democrats regain control of the Presidency and the Congress, Court-packing will be on the agenda, either expressly or under the guise of Court-reform. Now is the time for the American legal academy to join together to oppose this threat. Court-packing would threaten democracy, destroy the rule of law and undermine judicial independence. It is a pointless and unnecessary reaction born of …
Administrative Law: Whose Job Is It Anyway?, Allison Mather
Administrative Law: Whose Job Is It Anyway?, Allison Mather
Pepperdine Law Review
This Note examines the current state of judicial deference to administrative agencies and suggests modifying the doctrine to better comport with the Constitution. It examines the history of administrative agencies and the rise of judicial deference. The Note explores the present-day applications of judicial deference and analyzes whether the current doctrine is consistent with both its initial underlying policies and the Constitution. Ultimately, judicial deference to administrative agencies raises serious separation of powers concerns and should be modified to remain faithful to the nation’s founding principles.
Filling The Illinois Federal District Court Vacancies, Carl Tobias
Filling The Illinois Federal District Court Vacancies, Carl Tobias
Pepperdine Law Review
President Donald Trump repeatedly argues that appellate court appointments constitute his major success. The President and the United States Senate Republican Party majority have established records by approving fifty very conservative, young, and capable appellate court jurists. However, their confirmations have exacted a toll, particularly from the many federal district courts which address seventy-nine unfilled positions in 677 judicial posts. One constructive illustration has been the three Illinois tribunals which confront five pressing openings. The Administrative Office of the United States Courts classifies three as “emergencies,” because the vacant seats have been protracted and involve substantial caseloads. Despite this circumstance, …
The Court Can’T Even Handle Me Right Now: The Arpaio Pardon And Its Effect On The Scope Of Presidential Pardons, Tyler Brown
The Court Can’T Even Handle Me Right Now: The Arpaio Pardon And Its Effect On The Scope Of Presidential Pardons, Tyler Brown
Pepperdine Law Review
The Constitution grants the president the power to pardon individuals for offenses against the United States. Courts have interpreted this power broadly, and the American public has historically accepted its use, even in the face of several controversial pardons over the last five decades. However, after President Trump pardoned Joe Arpaio—a former Arizona sheriff who was held in criminal contempt of court for continuing to illegally detain suspected undocumented immigrants—scholars, activists, and political figures questioned whether this pardon was unconstitutional. This Comment discusses the Court’s interpretation of the pardoning power, controversial pardons in modern history, and the details of the …
Between "The Rock" And A Hard Case: Application Of The Emoluments Clauses For A New Political Era, Douglas R. Hume
Between "The Rock" And A Hard Case: Application Of The Emoluments Clauses For A New Political Era, Douglas R. Hume
Pepperdine Law Review
The election of Donald Trump in 2016 rewrote some of the traditional rules for electing presidents in the United States. Does his election portend a new breed of presidential candidate, arising from the business and celebrity arena rather than traditional government service? If so, the potential for candidates with more diverse and global business interests (and the conflicts of interest that come along with them) becomes more likely. This Essay discusses the historical intent of the Emoluments Clauses and the issue of potential presidential conflicts of interest. This Essay also examines the litigation efforts filed against President Trump to force …
Duty And Disobedience: The Conflict Of Conscience And Compliance In The Trump Era, Keith A. Petty
Duty And Disobedience: The Conflict Of Conscience And Compliance In The Trump Era, Keith A. Petty
Pepperdine Law Review
In the first weeks of President Trump’s administration, the Acting Attorney General was fired for ordering the Justice Department not to enforce a controversial Executive Order on immigration. Police departments and corporate boardrooms prepare for deregulation and less oversight, opening the door to more aggressive police tactics and profit seeking, respectively. Military leaders wonder whether they will be ordered to torture suspected terrorists. In each of these situations, individuals must decide whether they will follow their conscience and disobey superiors, or comply with organizational and state policies. This article examines the conflict between conscience and compliance, and draws upon lessons …
The Vice Presidency In Five (Sometimes) Easy Pieces, Vikram David Amar
The Vice Presidency In Five (Sometimes) Easy Pieces, Vikram David Amar
Pepperdine Law Review
The public perception of the Vice President is that of an individual with little actual authority, but who has the potential to be thrust into the most powerful office in the world. But the modern Vice President has additional responsibilities that many often forget. Contrary to public perception, the Vice President’s role as President of the Senate carries important Constitutional responsibilities, such as the ability to weigh-in with tie-breaking votes in the Senate or preside over impeachment trials. Though overlooked, these are important and powerful responsibilities. Additionally, the Vice President has assumed the role of Presidential “running mate” and with …
Oh, Vpotus, Where Art Thou? The Constitutional Situs Of The Vice Presidency As Surveyed By A Former Vice Presidential Lawyer, Shannen W. Coffin
Oh, Vpotus, Where Art Thou? The Constitutional Situs Of The Vice Presidency As Surveyed By A Former Vice Presidential Lawyer, Shannen W. Coffin
Pepperdine Law Review
A dispute between a federal oversight authority and the Office of the Vice President (OVP) prompted an unprecedented public discussion regarding the proper location and role of the vice presidency when Dick Cheney’s Chief of Staff challenged an audit of classified information on the grounds that the OVP was not an entity within the Executive Branch. The modern role of the Vice President is generally viewed as advisor and supporter of the President, with all executive authority vested in the President. Conversely, the Vice President presides as President of the Senate, casting tie-breaking votes when necessary. This dual role invokes …
The Vice Presidency In The Twenty-First Century, Jody C. Baumgartner
The Vice Presidency In The Twenty-First Century, Jody C. Baumgartner
Pepperdine Law Review
The vice presidency has undergone almost revolutionary change since its inception 227 years ago. Conceived as a convenient solution to a problem created by the Electoral College, the Vice President has only two constitutional functions—to serve as a successor to the President and as the President of the Senate. However, over the past sixty years, vice presidents have become increasingly part of and integral to American governance, and the last three (Al Gore, Dick Cheney, and Joe Biden) have been exceptionally active executive actors. What was once an all-but forgotten office is now an essential part of a president’s administration. …
The Vice President-More Than An Afterthought?, Richard B. Cheney, Edwin Meese Iii, Douglas W. Kmiec
The Vice President-More Than An Afterthought?, Richard B. Cheney, Edwin Meese Iii, Douglas W. Kmiec
Pepperdine Law Review
A round-table discussion among former U.S. Vice President Richard B. Cheney, Caruso Family Professor of Law and retired U.S. Ambassador Douglas Kmiec, and former U.S. Attorney General Edwin Meese III considered the practical implications of conceiving the Vice President as a legislative officer, an executive officer, or both. It was noted that until the second half of the twentieth century, the Office of the Vice President was conceived as legislative. Funding for the Office appeared in budget lines relating to Congress and physically, the Vice President’s office was in the Capitol. Beginning with Walter Mondale’s service as Vice President, presidents …
A Constitutional Afterthought: The Origins Of The Vice Presidency, 1787 To 1804, Edward J. Larson
A Constitutional Afterthought: The Origins Of The Vice Presidency, 1787 To 1804, Edward J. Larson
Pepperdine Law Review
At the origins of the office, even though the Vice President was, as its first occupant John Adams declared, “only one breath” away from the presidency, the Office of the Vice President was an afterthought of the Constitutional Convention. Never discussed during the first three months of the four-month long Convention, the Committee of Eleven introduced the vice presidency as a byproduct of how it resolved to fix the presidential selection process. Under this process, the Electoral College emerged, with each state assigned the same number of electors as its members in the House of Representatives and Senate. Each elector …
Failure To Act And The Separation Of Powers-The Vice Presidency And The Need To Surmount Divided Power In Pursuit Of A Workable Government, Douglas W. Kmiec
Failure To Act And The Separation Of Powers-The Vice Presidency And The Need To Surmount Divided Power In Pursuit Of A Workable Government, Douglas W. Kmiec
Pepperdine Law Review
Is the Vice President an executive officer, a legislative officer, or both? This query has existed since the time of the founding. The question poses more difficulty than one might suppose, and it remains unsettled. It can be convenient to ignore questions that one cannot answer, and thus, the Vice President has been the object of political humor and treated as an appendage without present function. Yet, because we attribute great genius to those who drafted the Constitution, what is the effect of leaving this high-ranking officer without adequate definition or purpose? For the first century and a half of …
The Indefinite Deflection Of Congressional Standing, Nat Stern
The Indefinite Deflection Of Congressional Standing, Nat Stern
Pepperdine Law Review
Recent litigation brought or threatened against the administration of President Obama has brought to prominence the question of standing by Congress or its members to sue the President for nondefense or non-enforcement of federal law. While scholars divide over the normative propriety of such suits, the Court has never issued a definitive pronouncement on their viability. Nevertheless, the Court’s rulings when the issue has arisen have displayed a distinct pattern. While the Court has not formally repudiated suits of this nature, neither has it issued a decision that hinges on the presence of congressional standing. On the contrary, the Court …
Aumf Panel Transcript, Rosa Brooks, Benjamin Wittes
Aumf Panel Transcript, Rosa Brooks, Benjamin Wittes
Pepperdine Law Review
No abstract provided.
Lost In Translation? The Relevancy Of Kobe Bryant And Aristotle To The Legality Of Modern Warfare, Rachel E. Vanlandingham
Lost In Translation? The Relevancy Of Kobe Bryant And Aristotle To The Legality Of Modern Warfare, Rachel E. Vanlandingham
Pepperdine Law Review
What do Kobe Bryant, Aristotle, and the continuing U.S. response to the terrorist attacks on September 11, 2001, have in common? President Barack Obama told the New Yorker in early 2014, in response to a question regarding the seeming resurgence of al Qaeda in Syria and Iraq, that “[t]he analogy we use around here sometimes, and I think is accurate, is if a jayvee team puts on Lakers uniforms that doesn’t make them Kobe Bryant.” As this example demonstrates, the Obama Administration and others, in reference to the legality of the use of armed force against al Qaeda and similar …
Guaranteeing Republics To The Confederate States: A Guarantee Clause Justification For Lincoln’S Response To Civil War, Michael Morea
Guaranteeing Republics To The Confederate States: A Guarantee Clause Justification For Lincoln’S Response To Civil War, Michael Morea
Pepperdine Law Review
There has been substantial debate over the constitutionality of Lincoln’s response to secession and his role as executive during the Civil War. While many historians and legal experts accept the theory that Lincoln, as president, was vested by Article II with power to act decisively in suppressing secession in an effort to preserve the Union, there is branch of libertarian thought that remains unconvinced that his tactics were constitutional. For example, three-time presidential candidate Ron Paul, in an interview with “Meet the Press,” stated that Lincoln should not have gone to war, arguing that Lincoln’s actions were motivated by the …
On Executive Clemency: The Pardon Of Richard M. Nixon , Michael K. Mckibbin
On Executive Clemency: The Pardon Of Richard M. Nixon , Michael K. Mckibbin
Pepperdine Law Review
No abstract provided.
The Mink Case: Restoring The Freedom Of Information Act , Patsy T. Mink
The Mink Case: Restoring The Freedom Of Information Act , Patsy T. Mink
Pepperdine Law Review
No abstract provided.
Book Reviews, James D. Mcgoldrick, Charles I. Nelson
Book Reviews, James D. Mcgoldrick, Charles I. Nelson
Pepperdine Law Review
No abstract provided.
Regulatory Reform: Toward More Balanced And Flexible Federal Agency Regulation, Donald T. Bliss
Regulatory Reform: Toward More Balanced And Flexible Federal Agency Regulation, Donald T. Bliss
Pepperdine Law Review
The Reagan administration's desire to stimulate the national economy has resulted in a fundamental change in our federal regulatory scheme. By executive order No. 12,291, the regulatory process has been brought under the scrutiny and control of the President in order to insure the pursuit of rational economic objectives. This recent executive decree represents the latest attempt to meet the challenge of a decade long attack on federal regulation. The author critically examines the scope of this order while prospectively analyzing the attendant problems this particular type of reform will encounter. Mr. Bliss ultimately suggests the Reagan administration's approach to …
Nixon V. Fitzgerald: Recognition Of Absolute Immunity From Personal Damage Liability For Presidential Acts, Craig B. Forry
Nixon V. Fitzgerald: Recognition Of Absolute Immunity From Personal Damage Liability For Presidential Acts, Craig B. Forry
Pepperdine Law Review
Although traditionally it has been recognized that the President is absolutely immune from personal damage liability for his official acts, there is no precedent for this rule in constitutional text or case law. However, in the case of Nixon v. Fitzgerald, the Supreme Court overruled lower federal courts in establishing a clear precedent for the President's absolute immunity from personal liability for civil damages. The author examines this decision in light of traditional principles of official immunity and analyzes the Court's holding from the standpoint of whether the President is indeed placed "above the law."
The Confrontation Of The Legislative And Executive Branches: An Examination Of The Constitutional Balance Of Powers And The Role Of The Attorney General, Robert E. Palmer
The Confrontation Of The Legislative And Executive Branches: An Examination Of The Constitutional Balance Of Powers And The Role Of The Attorney General, Robert E. Palmer
Pepperdine Law Review
The United States Constitution created an internally dependent tripartite governing scheme which relied upon a carefully drafted system of checks and balances as a means of self-regulation. Recent years have seen increased conflicts between the separate branches, the most recent of which is the occasion for this article. The article traces the rise and fall of the power exercised by the various branches and then focuses on the recent confrontation between Congress and the executive branch concerning the actions of the Environmental Protection Agency and the subsequent resignation of Anne McGill Burford. Of particular interest to this inquiry is the …
The United States Government As Defendant - One Example Of The Need For A Uniform Liability Regime To Govern Outer Space And Space-Related Activities, Joseph A. Bosco
The United States Government As Defendant - One Example Of The Need For A Uniform Liability Regime To Govern Outer Space And Space-Related Activities, Joseph A. Bosco
Pepperdine Law Review
No abstract provided.
Boiler Room Fraud: An Operational Plan Utilizing The Injunction Against Fraud Pursuant To 18 U.S.C. §1345 , Robert M. Twiss
Boiler Room Fraud: An Operational Plan Utilizing The Injunction Against Fraud Pursuant To 18 U.S.C. §1345 , Robert M. Twiss
Pepperdine Law Review
No abstract provided.
Negotiating Better Superfund Settlements: Prospects And Protocols, Scott A. Cassel
Negotiating Better Superfund Settlements: Prospects And Protocols, Scott A. Cassel
Pepperdine Law Review
No abstract provided.
The Implications Of Alternative Dispute Resolution Processes For Decisionmaking In Administrative Disputes, Wallace Warfield
The Implications Of Alternative Dispute Resolution Processes For Decisionmaking In Administrative Disputes, Wallace Warfield
Pepperdine Law Review
No abstract provided.
The Department Of Justice Merger Guidelines: A Critique And A Proposed Improvement, R. Preston Mcafee, Michael A. Williams
The Department Of Justice Merger Guidelines: A Critique And A Proposed Improvement, R. Preston Mcafee, Michael A. Williams
Pepperdine Law Review
No abstract provided.