Constitutional Law Commons^™

March 30, 2012: A Fundamental Rights Case Masquerading As A Commerce Clause Case, Bruce Ledewitz

Hallowed Secularism

Blog post, “A Fundamental Rights Case Masquerading as a Commerce Clause Case“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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

Pepperdine Law Review

No abstract provided.

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

Pepperdine Law Review

No abstract provided.

Obamacare And The 'What Is A Tax?' Issue – Part Ii, Steve R. Johnson

Scholarly Publications

We are engaged in a two-part exploration. The previous installment of our column reviewed the perennial question of whether a given state or local exaction should be classified as a tax or something else. It rehearsed the contexts in which the issue has arisen in state and local tax controversies, the practical stakes involved in those controversies, and the criteria courts have developed to distinguish between truces and other types of governmental levies.

The previous installment also said that a new source of guidance as to the “what constitutes a tax?” question is developing: litigation over the individual mandate and …

March 24, 2012: An Open Letter To David Niose, President Of The American Humanist Association, Bruce Ledewitz

Hallowed Secularism

Blog post, “An Open Letter to David Niose, President of the American Humanist Association“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

March 23, 2012: Warm Enough For You?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Warm Enough For You?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

March 19, 2012: Without Gods, Bruce Ledewitz

Hallowed Secularism

Blog post, “Without Gods“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Indecent Exposure: Fcc V. Fox And The End Of An Era, David Houska

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

March 16, 2012: Pannikkar’S Rhythm Of Being, Bruce Ledewitz

Hallowed Secularism

Blog post, “Pannikkar’s Rhythm of Being“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

March 14, 2012: The Break-Up Of A Section, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Break-Up of a Section“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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

Pepperdine Law Review

No abstract provided.

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

Pepperdine Law Review

No abstract provided.

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

Pepperdine Law Review

No abstract provided.

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

Pepperdine Law Review

No abstract provided.

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

Pepperdine Law Review

No abstract provided.

March 11, 2012: Are Any Other Pro-Life People Outraged And Embarrassed?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Are Any Other Pro-Life People Outraged and Embarrassed?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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

Pepperdine Law Review

No abstract provided.

March 7, 2012: Guatemala, Bruce Ledewitz

Hallowed Secularism

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

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.

American Influence On Israeli Law: Freedom Of Expression, Pnina Lahav

Faculty Scholarship

This chapter provides a historical overview of the American influence on Israel’s jurisprudence of freedom of expression from the 1950s to the first decade of the twenty first century. The chapter uses the format of decades, presenting representative cases for each decade, to record the process by which Israeli judges incorporated and sometimes rejected themes from the U.S. jurisprudence of freedom of expression. In the course of discussing the jurisprudential themes the chapter also highlights the historical context in which the cases were decided, from the war in Korea and McCarthyism in the 1950s, to the process of globalization which …

Defense Of Marriage Acts: A Fifty State Survey, Erica A. Holzer

Student Scholarship

This document includes every DoMA statute and constitutional amendment in all 50 states in alphabetical order as of January 31, 2012. The text of these laws is provided, as well as a link to the statute or constitutional amendment on Westlaw.

Doma Statutes And Same-Sex Divorce Litigation, Erica A. Holzer

Student Scholarship

For the purposes of writing a article on same-sex divorce, it became necessary to categorize the various state Defense of Marriage Act (DoMA) statutes and constitutional amendments to analyze how each type of DoMA might handle a petition for same-sex divorce. In doing so, I developed six different categories: (1) No DoMA; (2) Definitional DoMAs; (3) DoMAs that void same-sex marriages; (4) DoMAs that explicitly deny benefits of marriage; (5) DoMAs that declare that there is no same-sex marriage to dissolve; and (6) DoMAs that explicitly prohibit same-sex divorce. This document shows which state DoMAs fall into each of these …

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

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; …