The Public Use Clause: Constitutional Mandate Or "Hortatory Fluff"?,
2012
Pepperdine University
The Public Use Clause: Constitutional Mandate Or "Hortatory Fluff"?, Gideon Kanner
Pepperdine Law Review
No abstract provided.
Preemption And Regulatory Failure,
2012
Pepperdine University
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,
2012
Pepperdine University
Empowering States: A Rebuttal To Dr. Greve, Erwin Chemerinsky
Pepperdine Law Review
No abstract provided.
Federal Preemption: James Madison, Call Your Office,
2012
Pepperdine University
Federal Preemption: James Madison, Call Your Office, Michael S. Greve
Pepperdine Law Review
No abstract provided.
Empowering States: The Need To Limit Federal Preemption,
2012
Pepperdine University
Empowering States: The Need To Limit Federal Preemption, Erwin Chemerinsky
Pepperdine Law Review
No abstract provided.
Congress's Power To Preempt The States,
2012
Pepperdine University
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,
2012
Pepperdine University
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,
2012
Pepperdine University
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,
2012
Pepperdine University
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?,
2012
Duquesne University
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?,
2012
Pepperdine University
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,
2012
Pepperdine University
Intermittent State Constitutionalism, Justin Long
Pepperdine Law Review
No abstract provided.
March 7, 2012: Guatemala,
2012
Duquesne University
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,
2012
Pepperdine University
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,
2012
Boston University School of Law
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,
2012
William Mitchell College of Law
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,
2012
William Mitchell College of Law
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,
2012
Pepperdine University
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,
2012
Pepperdine University
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; …
Of Burning Houses And Roasting Pigs: Why Butler V. Michigan Remains A Key Free Speech Victory More Than A Half-Century Later,
2012
University of Florida-Gainesville
Of Burning Houses And Roasting Pigs: Why Butler V. Michigan Remains A Key Free Speech Victory More Than A Half-Century Later, Clay Calvert
Federal Communications Law Journal
More than fifty years after the U.S. Supreme Court rendered its unanimous decision in Butler v. Michigan, the case remains a pivotal-if unheralded and perhaps underappreciated-victory for freedom of speech. This Article analyzes the Butler principle and demonstrates how courts repeatedly apply it across different media platforms and in a myriad of factually distinct contexts, ranging from prohibitions on the sale of sex toys to bans on beer bottles with offensive labels. The Article initially provides an in-depth look at Butler, drawing on literary scholarship, historical newspaper articles from the time of the case, and other sources. It then illustrates …
