Constitutional Law Commons^™

Can California Save Its Death Sentences? Will Californians Save The Expense?, Scott W. Howe

Cardozo Law Review

No abstract provided.

The Indefensible Duty To Defend, Neal Devins, Saikrishna B. Prakash

Faculty Publications

Modern Justice Department opinions insist that the executive branch must enforce and defend laws. In the first article to systematically examine Department of Justice refusals to defend, we make four points. First, the duties to enforce and defend lack any sound basis in the Constitution. Hence, while President Obama is right to refuse to defend the Defense of Marriage Act, he is wrong to continue to enforce a law he believes is unconstitutional. Second, rather than being grounded in the Constitution, the duties are better explained by the Department of Justice’s (DOJ) desire to enhance its independence and status. By …

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.