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Articles 1 - 29 of 29
Full-Text Articles in Law
Second Amendment Sanctuaries: Defiance, Discretion, And Race, Nicholas J. Johnson
Second Amendment Sanctuaries: Defiance, Discretion, And Race, Nicholas J. Johnson
Pepperdine Law Review
Second Amendment Sanctuaries deploy nonenforcement policies and strategies in defiance of firearms laws of superior jurisdictions. The scholarship so far has focused on whether Second Amendment Sanctuary policies are legally enforceable. This Article advances the scholarship beyond questions of de jure validity by examining the potential for practical, de facto efficacy of Second Amendment Sanctuary policies. This Article concludes that even where Second Amendment Sanctuaries have weak claims to formal validity, defiant public officials still have broad opportunities to implement Second Amendment Sanctuary policies through the exercise of enforcement discretion. The conclusion that enforcement discretion can effectuate sanctuary policies is …
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 …
A Defense Of The Electoral College In The Age Of Trump, John Yoo
A Defense Of The Electoral College In The Age Of Trump, John Yoo
Pepperdine Law Review
In the aftermath of the 2016 U.S. Presidential Election, where Donald J. Trump lost the popular vote by nearly 3 million votes but still secured victory in the Electoral College, renewed efforts to delegitimize or abolish the Electoral College system have surfaced. Critics, calling for a direct national vote for President, attacked the legitimacy of the election and decried the Constitution’s method of presidential selection as antiquated and undemocratic. Some legal scholars even suggested that the Electoral College must be abolished to disentangle it from America’s racist past and history of slavery. Recently, though, reformers in several States have banded …
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 …
Property Convergence In Takings Law, Maureen E. Brady
Property Convergence In Takings Law, Maureen E. Brady
Pepperdine Law Review
Although one of the key questions in a federal system is how authority should be allocated between the state and national governments, property law has rarely generated serious controversy on this front. Instead, property entitlements and the rules governing resource use have typically been the province of state and local actors. The Supreme Court has repeatedly emphasized that property rights are created at the state level. And while federal regulations—for example, environmental regulations—certainly limit property rights, state and local land-use laws and state nuisance and trespass rules serve as major constraints on property’s use and enjoyment. This feature of property …
The Past, Present, And Future Of Federalism: A Symposium Introduction, Derek T. Muller
The Past, Present, And Future Of Federalism: A Symposium Introduction, Derek T. Muller
Pepperdine Law Review
No abstract provided.
The Problem Of Purely Procedural Preemption Presented By The Federal Hear Act, William L. Charron
The Problem Of Purely Procedural Preemption Presented By The Federal Hear Act, William L. Charron
Pepperdine Law Review
The underlying purpose of the Holocaust Expropriated Art Recovery Act of 2016 (the HEAR Act), which is to return Nazi-looted artwork to victims or their families, is undeniably laudable. Restituting Nazi-looted artwork is and has been a moral objective of this country since the conclusion of World War II. It is equally clear that victims and their families can often face obstacles to gathering evidence from the war that would demonstrate Nazi theft in court. The HEAR Act strives to address these concerns by imposing a federal statute of limitations over all state law causes of action that would enable …
Hearing The States, Anthony Johnstone
Hearing The States, Anthony Johnstone
Pepperdine Law Review
The 2016 Presidential and Senate elections raise the possibility that a conservative, life-tenured Supreme Court will preside for years over a politically dynamic majority. This threatens to weaken the public’s already fragile confidence in the Court. By lowering the political stakes of both national elections and its own decisions, federalism may enable the Court to defuse some of the most explosive controversies it hears. Federalism offers a second-best solution, even if neither conservatives nor liberals can impose a national political agenda. However, principled federalism arguments are tricky. They are structural, more prudential than legal or empirical. Regardless of ideology, a …
Eight Justices Are Enough: A Proposal To Improve The United States Supreme Court, Eric J. Segall
Eight Justices Are Enough: A Proposal To Improve The United States Supreme Court, Eric J. Segall
Pepperdine Law Review
Over the last twenty-five years, some of the most significant Supreme Court decisions involving issues of national significance like abortion, affirmative action, and voting rights were five-to-four decisions. In February 2016, the death of Justice Antonin Scalia turned the nine-Justice court into an eight-Justice court, comprised of four liberal and four conservative Justices, for the first time in our nation’s history. This article proposes that an evenly divided court consisting of eight Justices is the ideal Supreme Court composition. Although the other two branches of government have evolved over the years, the Supreme Court has undergone virtually no significant changes. …
Equal Employment Opportunity Commission V. Wyoming: Appomattox Courthouse Revisited , Richard M. Stephens
Equal Employment Opportunity Commission V. Wyoming: Appomattox Courthouse Revisited , Richard M. Stephens
Pepperdine Law Review
A highly divided Court again addressed the relatively new doctrine in constitutional law: state exemption from federal regulations due to the concept of federalism. Although the Court applied the tests from National League of Cities v. Usury and its progeny, the Court reached a different result which, without expressly overruling that controversial case, severely limited National League of Cities to its facts. The hope of modern states' rights advocates proved to be short lived.
Foreword, Antonin Scalia
Effectuating Principles Of Federalism: Reevaulating The Federal Spending Power As The Great Tenth Amendment Loophole, Ryan C. Squire
Effectuating Principles Of Federalism: Reevaulating The Federal Spending Power As The Great Tenth Amendment Loophole, Ryan C. Squire
Pepperdine Law Review
No abstract provided.
Printz V. United States: The Revival Of Constitutional Federalism, Lang Jin
Printz V. United States: The Revival Of Constitutional Federalism, Lang Jin
Pepperdine Law Review
No abstract provided.
Federalism And Preemption In October Term 1999, Jonathan D. Varat
Federalism And Preemption In October Term 1999, Jonathan D. Varat
Pepperdine Law Review
No abstract provided.
Disentangling Symmetries: Speech, Association, Parenthood, Laurence H. Tribe
Disentangling Symmetries: Speech, Association, Parenthood, Laurence H. Tribe
Pepperdine Law Review
No abstract provided.
Rediscovering A Principled Commerce Power , Douglas W. Kmiec
Rediscovering A Principled Commerce Power , Douglas W. Kmiec
Pepperdine Law Review
No abstract provided.
Substance And Method In The Year 2000, Akhil Reed Amar
Substance And Method In The Year 2000, Akhil Reed Amar
Pepperdine Law Review
No abstract provided.
The Supreme Court's Most Extraordinary Term - Introduction, Douglas W. Kmiec
The Supreme Court's Most Extraordinary Term - Introduction, Douglas W. Kmiec
Pepperdine Law Review
No abstract provided.
Hypothetical Jurisdiction And Interjurisdictional Preclusion: A "Comity" Of Errors, Ely Todd Chayet
Hypothetical Jurisdiction And Interjurisdictional Preclusion: A "Comity" Of Errors, Ely Todd Chayet
Pepperdine Law Review
No abstract provided.
Stem Cell Research And Conditional Federal Funding: Do State Laws Allowing More Extensive Research Pose A Problem For Federalism?, Charity Schiller
Stem Cell Research And Conditional Federal Funding: Do State Laws Allowing More Extensive Research Pose A Problem For Federalism?, Charity Schiller
Pepperdine Law Review
No abstract provided.
Empowering States: A Rebuttal To Dr. Greve, Erwin Chemerinsky
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
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
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
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 …
Intermittent State Constitutionalism, Justin Long
Intermittent State Constitutionalism, Justin Long
Pepperdine Law Review
No abstract provided.
What Federalism & Why? Science Versus Doctrine, Stephen E. Gottlieb
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 …
Beyond The Executive Agreement: The Foreign Policy Preference Under Movsesian And The Return Of The Dormant Foreign Affairs Power In Norton Simon, Amir M. Tikriti
Beyond The Executive Agreement: The Foreign Policy Preference Under Movsesian And The Return Of The Dormant Foreign Affairs Power In Norton Simon, Amir M. Tikriti
Pepperdine Law Review
No abstract provided.
Marriage In California: Is The Federal Lawsuit Against Proposition 8 About Applying The Fourteenth Amendment Or Preserving Federalism? , Charles M. Cannizzaro
Marriage In California: Is The Federal Lawsuit Against Proposition 8 About Applying The Fourteenth Amendment Or Preserving Federalism? , Charles M. Cannizzaro
Pepperdine Law Review
No abstract provided.
Bankruptcy Federalism: A Doctrine Askew , Margaret Howard
Bankruptcy Federalism: A Doctrine Askew , Margaret Howard
Pepperdine Law Review
No abstract provided.