Constitutional Law Commons^™

Federalism And Preemption In October Term 1999, Jonathan D. Varat

Pepperdine Law Review

No abstract provided.

State Action And The Supreme Court's Emerging Consensus On The Line Between Establishment And Private Religious Expression, Michael W. Mcconnell

Pepperdine Law Review

No abstract provided.

Sex, Money, And Groups: Free Speech And Association Decisions In The October 1999 Term, Kathleen M. Sullivan

Pepperdine Law Review

No abstract provided.

Disentangling Symmetries: Speech, Association, Parenthood, Laurence H. Tribe

Pepperdine Law Review

No abstract provided.

Rediscovering A Principled Commerce Power , Douglas W. Kmiec

Pepperdine Law Review

No abstract provided.

Substance And Method In The Year 2000, Akhil Reed Amar

Pepperdine Law Review

No abstract provided.

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Pepperdine Law Review

No abstract provided.

The Supreme Court's Most Extraordinary Term - Introduction, Douglas W. Kmiec

Pepperdine Law Review

No abstract provided.

October 23, 2012: George Mcgovern, R.I.P., Bruce Ledewitz

Hallowed Secularism

Blog post, “George McGovern, R.I.P.“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Gray Zone In The Power Of Local Municipalities: Where Zoning Authority Clashes With State Law, Skye L. Daley

The Journal of Business, Entrepreneurship & the Law

This article will explore the oft-overlooked area of police powers granted to local municipalities by the California Constitution through the lens of marijuana dispensaries. These dispensaries, and the obstacles they face, provide the perfect vantage point from which to survey the current status of zoning power in California. This article will consider the extent and limits of what is known as the “police powers” of local municipalities: the power of cities, towns and counties to regulate, restrict, and proscribe the way in which land can be utilized within its borders. If local municipalities are the creation of the state--indeed, an …

October 19, 2012: Is There A Difference Between Religion And Philosophy?, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Is There A Difference Between Religion and Philosophy?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Surpassing Sentencing: The Controversial Next Step In Confrontation Clause Jurisprudence, Amanda Harris

Florida Law Review

After Crawford v. Washington opened the door to a Confrontation Clause debate in 2004, the United States Supreme Court has consistently confronted confrontation issues arising out of the Crawford interpretation. One issue that the Supreme Court has not yet tackled is whether the Confrontation Clause applies during non-capital and capital sentencing. While many states and federal courts continue to hold that no right of confrontation during sentencing exists, many other courts have chosen to apply a right of confrontation in both capital and non-capital sentencing. This Note takes two new approaches to the Confrontation Clause at sentencing debate. First, this …

The Gold Clause Cases And Constitutional Necessity, Gerard N. Magliocca

Florida Law Review

This Article presents a case study of how constitutional actors respond when the rule of law and necessity are sharply at odds and provides some background on Section Four of the Fourteenth Amendment.

In 1935, the Supreme Court heard constitutional challenges to the abrogation of “gold clauses” in contracts and Treasury bonds. Gold clauses guaranteed that creditors would receive payment in gold dollars as valued at the time a contract was made. Due to the deflation that followed the Great Depression, this meant that debtors were being forced to pay back much more than they owed originally. To stop a …

Just What The Doctor Ordered? How The Patient Safety And Quality Improvement Act May Cure Florida’S Patients’ Right To Know About Adverse Medical Incidents (Amendment 7), Kelly G. Dunberg

Florida Law Review

This Note addresses the impact of Florida’s Patients’ Right to Know About Adverse Medical Incidents (commonly known as Amendment 7) on the peer review process and the quality of healthcare in Florida. Enacted in 2004 as an amendment to the Florida Constitution, Amendment 7 provides citizens access to records and reports of past adverse medical incidents involving doctors, hospitals, and healthcare providers. Critics of Amendment 7 argue that peer review privilege protections are necessary to maintain high-quality healthcare in Florida, pointing to the need to encourage candid and vigorous evaluations by physicians of their colleagues. In contrast, Amendment 7 supporters …

Popular Originalism? The Tea Party Movement And Constitutional Theory, Rebecca E. Zietlow

Florida Law Review

The U.S. Constitution is currently the subject of a heated political debate. Tea Party activists have invoked the Constitution as the foundation of their conservative political philosophy. These activists are engaged in “popular originalism,” using popular constitutionalism—constitutional interpretation outside of the courts—to invoke originalism as interpretive method. The Tea Party movement thus provides an excellent heuristic to explore the relationship between originalism and popular constitutionalism, two prominent trends in constitutional theory. Both originalists and popular constitutionalists study legal history to illuminate constitutional meaning, but the two schools of thought draw diverging lessons from that history. Originalists look to history to …

The Model Penal Code’S Wrong Turn: Renunciation As A Defense To Criminal Conspiracy, R. Michael Cassidy, Gregory I. Massing

Florida Law Review

While the Model Penal Code was certainly one of the most influential developments in criminal law in the past century, the American Law Institute (ALI) took a seriously wrong turn by recognizing “renunciation” as a defense to the crime of conspiracy. Under the Model Penal Code formulation, a member of a conspiracy who later disavows the agreement and thwarts its objective (for example, by notifying authorities of the planned crime in order to prevent its completion) is afforded a complete defense to conspiracy liability. This defense has enormous implications for crimes involving national security and terrorism, which are typically planned …

The Open Road And The Traffic Stop: Narratives And Counter-Narratives Of The American Dream, Nancy Leong

Florida Law Review

American culture is steeped in the mythology of the open road. In our collective imagination, the road represents freedom, escape, friendship, romance, and above all, the possibility for a better life. But our shared dream of the open road comes to a halt in the mundane reality of the traffic stop—a judicially authorized policing procedure in which an officer may pull over a vehicle if she has cause to believe the driver has committed even the most minor traffic violation. I examine the cultural texts—books, movies, songs—celebrating the open road and juxtapose them against those documenting the traffic stop. The …

October 15, 2012: Politics And Religion, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Politics and Religion“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Misappropriating Women’S History In The Law And Politics Of Abortion , Tracy A. Thomas

Seattle University Law Review

To examine the veracity of the political and legal claims of a feminist history against abortion, this Article focuses on one of the leading icons used in antiabortion advocacy—Elizabeth Cady Stanton. Stanton has, quite literally, been the poster child for FFL’s historical campaign against abortion, appearing on posters, flyers, and commemorative coffee mugs. Advocates claim that Stanton is a particularly fitting spokesperson because she was a “feisty gal who had seven children and was outspokenly pro-life.” They claim that she “condemned abortion in the strongest possible terms” and was “a revolutionary who consistently advocated for the rights of women, for …

October 11, 2012: Simon Chritchley Writes About Religion, Bruce Ledewitz

Hallowed Secularism

Blog post, “Simon Chritchley Writes About Religion“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 9, 2012: Living In A Dream World, Bruce Ledewitz

Hallowed Secularism

Blog post, “Living in a Dream World“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Summary Of Busefink V. Nevada, 128 Nev. Adv. Op. 49, Nicole Scott

Nevada Supreme Court Summaries

The Court considered whether NRS § 293.805, which prohibits compensation based on the number of voters registered, violated the First Amendment. Further, the Court considered whether the statute is unconstitutionally vague.

October 7, 2012: The Nature Of Religion, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Nature of Religion“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 7, 2012: A Good, Not Great, Election, Bruce Ledewitz

Hallowed Secularism

Blog post, “A Good, Not Great, Election“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 3, 2012: The Perks Of Being A Wallflower, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Perks of Being a Wallflower“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Calculus Of Accommodation: Contraception, Abortion, Same-Sex Marriage, And Other Clashes Between Religion And The State, Robin F. Wilson

Scholarly Articles

This Article considers a burning issue in society today— whether, and under what circumstances, religious groups and individuals should be exempted from the dictates of civil law. The “political maelstrom” over the Obama administration’s sterilization and contraceptive coverage mandate is just one of many clashes between religion and the state. Religious groups and individuals have also sought religious exemptions to the duty to assist with abortions or facilitate samesex marriages. In all these contexts, religious objectors claim a special right of entitlement to follow their religious tenets, in the face of equally compelling claims that religious accommodations threaten access and …

Policing Identity, Wayne A. Logan

Scholarly Publications

Identity has long played a critical role in policing. Learning “who” an individual is not only affords police knowledge of possible criminal history, but also of “what” an individual might have done. To date, however, these matters have eluded sustained scholarly attention, a deficit that has assumed ever greater significance as government databases have become more comprehensive and powerful. Identity evidence, in short, has and continues to suffer from an identity crisis, which this Article seeks to remedy. The Article does so by first surveying the methods historically used by police to identify individuals, from nineteenth-century efforts to measure bodies …

It's Not A Tax (Statutorily), But It Is A Tax (Constitutionally), Steve R. Johnson

Scholarly Publications

No abstract provided.

The Art Of Persuasion: International/Comparative Human Rights, The Supreme Court Of Canada And The Reconstitution Of The Canadian Security Certificate Regime, Graham Hudson

PhD Dissertations

In this dissertation, the author explores the jurisprudential foundations of the “relevant and persuasive” doctrine, which authorizes Canadian judges to rely on international and comparative human rights when interpreting the Charter of Rights and Freedoms. Viewed in its best light, this doctrine improves respect for human rights in two distinct ways: securing Canada’s compliance with its international human rights obligations and enhancing the responsiveness of state law to the global and multicultural context of Canadian society. However, actual jurisprudence suggests that the doctrine has helped undermine principles of respect for constitutional supremacy and respect for international law, in part because …

Constitutional Cacophony: Federal Circuit Splits And The Fourth Amendment, Wayne A. Logan

Scholarly Publications

Despite their many differences, Americans have long been bound by a shared sense of constitutional commonality. Federal constitutional rights, however, can and do often vary based on geographic location, and a chief source of this variation stems from an unexpected origin: the nation's federal circuit courts of appeals. While a rich literature exists on federal circuit splits in general, this Article provides the first empirical study of federal constitutional law circuit splits. Focusing on Fourth Amendment doctrine in particular, the Article highlights the existence of over three dozen current circuit splits, which result in the unequal allocation of liberty and …