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Articles 1 - 30 of 92
Full-Text Articles in Law
Convenient For Who? Apportioning State Income Taxes In The Context Of Remote Work, Brandon Smith
Convenient For Who? Apportioning State Income Taxes In The Context Of Remote Work, Brandon Smith
The Journal of Business, Entrepreneurship & the Law
No abstract provided.
Rounding Up The Three-Fifths Clause: Eradicating Prison Gerrymandering In The South, Abigail N. Falk
Rounding Up The Three-Fifths Clause: Eradicating Prison Gerrymandering In The South, Abigail N. Falk
Pepperdine Law Review
This Comment examines the phenomenon of prison gerrymandering, a practice that involves counting prisoners as residents of the counties where their state correctional facilities are located—rather than in their home communities—for redistricting and representational purposes. This practice of counting inflates the voting power of rural, white districts with large prison complexes and diminishes the voting power of minority communities. Prison gerrymandering has become especially pervasive across southern states while many of the South’s northern counterparts have eradicated this practice through legislative reform. This Comment proposes a solution to stop prison gerrymandering in the South, arguing a strategy to produce a …
Legalization Without Disruption: Why Congress Should Let States Restrict Interstate Commerce In Marijuana, Scott Bloomberg, Robert A. Mikos
Legalization Without Disruption: Why Congress Should Let States Restrict Interstate Commerce In Marijuana, Scott Bloomberg, Robert A. Mikos
Pepperdine Law Review
Over the past twenty-five years, states have developed elaborate regulatory systems to govern lawful marijuana markets. In designing these systems, states have assumed that the Dormant Commerce Clause (“DCC”) does not apply; Congress, after all, has banned all commerce in marijuana. However, the states’ reprieve from the doctrine may soon come to an end. Congress is on the verge of legalizing marijuana federally, and once it does, it will unleash the DCC, with dire consequences for the states and the markets they now regulate. This Article serves as a wake-up call. It provides the most extensive analysis to date of …
Presumptively Awful: How The Federal Government Is Failing To Protect The Constitutional Rights Of Those Adjudicated As Mentally Ill, As Illustrated By The 18 U.S.C. § 922(G)(4) Circuit Split, Kaitlyn M. Rubcich
Pepperdine Law Review
The Third, Sixth, and Ninth Circuits are split as to whether the 18 U.S.C. § 922(g)(4) federal firearms ban violates the Second Amendment rights of those who were once adjudicated as mentally ill but have since returned to good mental health. In Beers v. Attorney General, the Third Circuit applied its own unique framework and held that § 922(g)(4) is constitutional. Meanwhile, the Sixth Circuit applied intermediate scrutiny in Tyler v. Hillsdale County Sheriff’s Department and deemed the statute unconstitutional, while in Mai v. United States, the Ninth Circuit also applied intermediate scrutiny but held that § 922(g)(4) is constitutional. …
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 …
Overruling Roe V. Wade: Lessons From The Death Penalty, Paul Benjamin Linton
Overruling Roe V. Wade: Lessons From The Death Penalty, Paul Benjamin Linton
Pepperdine Law Review
In Furman v. Georgia (1972), the Supreme Court struck down the Georgia and Texas death penalty statutes, thereby calling into question the validity of every other state death penalty statute. In their concurring opinions, Justices Brennan and Marshall expressed the view that, given society’s gradual abandonment of the death penalty, capital punishment violated the Eighth Amendment’s prohibition of “cruel and unusual punishments.” Justice Powell and three other justices dissented, arguing that the Court had misread the state of the law regarding society’s acceptance of the death penalty. Four years after Furman, in a quintet of cases, the Court held that …
Federalism Limits On Non-Article Iii Adjudication, F. Andrew Hessick
Federalism Limits On Non-Article Iii Adjudication, F. Andrew Hessick
Pepperdine Law Review
Although Article III of the Constitution vests the federal judicial power in the Article III courts, the Supreme Court has created a patchwork of exceptions permitting non-Article III tribunals to adjudicate various disputes. In doing so, the Court has focused on the separation of powers, concluding that these non-Article III adjudications do not unduly infringe on the judicial power of the Article III courts. But separation of powers is not the only consideration relevant to the lawfulness of non-Article III adjudication. Article I adjudications also implicate federalism. Permitting Article I tribunals threatens the role of state courts by expanding federal …
Ericsson, Inc. V. Regents Of The University Of Minnesota And A New Frontier For The Waiver By Litigation Conduct Doctrine, Jason Kornmehl
Ericsson, Inc. V. Regents Of The University Of Minnesota And A New Frontier For The Waiver By Litigation Conduct Doctrine, Jason Kornmehl
Pepperdine Law Review
Eleventh Amendment sovereign immunity is one of the most confusing areas of constitutional law. The waiver by litigation conduct doctrine represents a particularly complex aspect of Eleventh Amendment immunity. Courts, for example, have not precisely defined the extent to which waiver in a prior proceeding might extend to a future one. The Patent Trial and Appeals Board recently considered this issue in a novel context. In Ericsson, Inc. v. Regents of the University of Minnesota, the Patent Trial and Appeals Board applied the waiver by litigation conduct doctrine in an inter partes review proceeding. Combining the Eleventh Amendment, non-Article III …
The Death Of Judicial Independence In Turkey: A Lesson For Others, Edwin L. Felter Jr., Oyku Didem Aydin
The Death Of Judicial Independence In Turkey: A Lesson For Others, Edwin L. Felter Jr., Oyku Didem Aydin
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Rfra As Legislative Entrenchment, Branden Lewiston
Rfra As Legislative Entrenchment, Branden Lewiston
Pepperdine Law Review
When there is a conflict between two federal statutes, the more recent statute overrides the past statute. However, courts have used the Religious Freedom Restoration Act (RFRA) to preempt federal laws passed after it. Normally that is the role of constitutional provisions, not statutes. RFRA has been subject to much constitutional criticism, but its attempt to control subsequent federal law has drawn little attention. Courts use RFRA to trump subsequent federal statutes without second thought. This Essay draws on legislative entrenchment doctrine to argue that this feature of RFRA is unconstitutional. RFRA should be used to strike down prior laws …
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 Administrative State: Problems Associated With Congressional Intent, Statutory Interpretation, And The Powers Granted To Administrative Agencies, Serje Havandjian
The Administrative State: Problems Associated With Congressional Intent, Statutory Interpretation, And The Powers Granted To Administrative Agencies, Serje Havandjian
Journal of the National Association of Administrative Law Judiciary
While reading this article, two questions should be kept in mind: (1) why the Court held that the TSA promulgated whistleblowing regulation was not considered to have the force and effect of law, and how that effects other regulations, and (2) how should the Supreme Court respond if a conflict of congressional intent and statutory interpretation arises within another regulatory or administrative agency's internal scheme for regulating such issues? With a careful analysis of statutory interpretation and determining congressional intent, and some luck, this article will try to answer these questions. Ultimately, what we will find is that although Congress …
Does The Mechanical License Provision Of The Copyright Act Violate The Copyright Clause?, Maryna Koberidze
Does The Mechanical License Provision Of The Copyright Act Violate The Copyright Clause?, Maryna Koberidze
The Journal of Business, Entrepreneurship & the Law
No abstract provided.
Too Much Collateral Damage; Fatca: The Well-Intentioned, Yet Misguided And Unconstitutional, Tax Law, Zac Delap
Too Much Collateral Damage; Fatca: The Well-Intentioned, Yet Misguided And Unconstitutional, Tax Law, Zac Delap
Journal of the National Association of Administrative Law Judiciary
This paper will examine FATCA in five parts: beginning with an introduction in Part I, Part II will provide the pertinent background that gave rise to the law, Part III will present the essential elements of FATCA, Part IV will offer pertinent liberty and constitutional arguments against FATCA, and Part V will analyze each argument's possibility of succeeding.
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 …
“Islamic Law” In Us Courts: Judicial Jihad Or Constitutional Imperative?, Faisal Kutty
“Islamic Law” In Us Courts: Judicial Jihad Or Constitutional Imperative?, Faisal Kutty
Pepperdine Law Review
At the beginning of 2014, about a dozen states introduced or re-introduced bills to ban the use of Sharī’ah law. They hope to join the seven states that have ostensibly banned it to date. Anti-Sharī’ah advocates have cited a number of cases to back their tenuous claim that Sharī’ah is stealthily sneaking in through the doctrine of comity, but a close examination of the cases they cite contradicts their claim. Comity, when one court defers to the jurisdiction of another, has been accepted and denied based on legal principles and public policy, on a case-by-case basis. There is no creeping …
Resolving The Alj Quandary, Kent Barnett
Resolving The Alj Quandary, Kent Barnett
Journal of the National Association of Administrative Law Judiciary
Three competing constitutional and practical concerns surround federal administrative law judges (“ALJs”), who preside over all formal adjudications within the executive branch. First, if ALJs are “inferior Officers” (not mere employees), as five current Supreme Court Justices have suggested, the current method of selecting many ALJs likely violates the Appointments Clause. Second, a recent U.S. Supreme Court decision reserved the question whether the statutory protections that prevent ALJs from being fired at will impermissibly impinge upon the President’s supervisory power under Article II. Third, these same protections from removal may, on the other hand, be too limited to satisfy impartiality …
Final Decision Authority And The Central Panel Alj, Larry J. Craddock
Final Decision Authority And The Central Panel Alj, Larry J. Craddock
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Treading Water: Can Municipal Efforts To Condemn Underwater Mortgages Prevail?, Michael S. Moskowitz
Treading Water: Can Municipal Efforts To Condemn Underwater Mortgages Prevail?, Michael S. Moskowitz
Pepperdine Law Review
No abstract provided.
The Post-Tsa Airport: A Constitution Free Zone?, Daniel S. Harawa
The Post-Tsa Airport: A Constitution Free Zone?, Daniel S. Harawa
Pepperdine Law Review
No abstract provided.
Facebook Is Not Your Friend: Protecting A Private Employee's Expectation Of Privacy In Social Networking Content In The Twenty-First Century Workplace, Cara Magatelli
The Journal of Business, Entrepreneurship & the Law
This Comment explores the implications SNS postings have on private employers concerning the off-duty, non-work related conduct of their employees. This argument recognizes that an employee is entitled to engage in whatever legal off-duty conduct he chooses, so long as the behavior does not damage his employer's legitimate business interests. An employer should not be able to use information gleaned from an employee's SNS postings, unrelated to an employer's business interests, to punish an employee for her choices outside the work place. Disciplining or terminating an employee for his off-duty lifestyle choices permits the morals and standards of the employer …
The Constitutional Infirmity Of The California Government Claim Statute, James C. Downing, Nikolai Tehin Jr.
The Constitutional Infirmity Of The California Government Claim Statute, James C. Downing, Nikolai Tehin Jr.
Pepperdine Law Review
No abstract provided.
Natural Law And The Ninth Amendment, Thomas E. Towe
Natural Law And The Ninth Amendment, Thomas E. Towe
Pepperdine Law Review
No abstract provided.
The California Constitution And Counsel At Pretrial Lineups: Disneyland Claims Or Deadly Serious Business? , John Moravek
The California Constitution And Counsel At Pretrial Lineups: Disneyland Claims Or Deadly Serious Business? , John Moravek
Pepperdine Law Review
No abstract provided.
Property Taxation Of Foreign Goods And Enterprises - A Study In Inconsistency , James Dexter Clark
Property Taxation Of Foreign Goods And Enterprises - A Study In Inconsistency , James Dexter Clark
Pepperdine Law Review
No abstract provided.
Privacy, Jed Rubenfeld
Privacy, Jed Rubenfeld
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Unemployment Insurance And The Religion Clauses Of The United States Constitution, David J. Agatstein
Unemployment Insurance And The Religion Clauses Of The United States Constitution, David J. Agatstein
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Sequestering Witnesses: Does The Practice Interfere With Defendants' Constitutional Rights?, Harold Baer Jr.
Sequestering Witnesses: Does The Practice Interfere With Defendants' Constitutional Rights?, Harold Baer Jr.
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Legal Implications Of Substance Abuse Testing In The Workplace, Michael S. Cecere, Phillip B. Rosen
Legal Implications Of Substance Abuse Testing In The Workplace, Michael S. Cecere, Phillip B. Rosen
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
A Broke(N) System: Comment On The Supreme Court's Decision To Rule On The Equal Access Provision In Douglas V. Independent Living Center, And Its Potential Impact On The Affordable Care Act, Megan Waugh
Journal of the National Association of Administrative Law Judiciary
This comment first provides a historical and legal backdrop of the Medicaid system, the Equal Access Provision and private individuals' enforcement of the Equal Access Provision through litigation in order to analyze the outcome of Douglas in light of the Supreme Court's decision in the Affordable Care Act Case. Then taking that analysis, this article recommends an approach to handle either a cause of action or no cause of action under the Supremacy Clause upon the implementation of PPACA.