Pepperdine Law Review – Pepperdine University School of Law

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2020 Annual Volume

/ August 1, 2020

“Drive-by” Jurisdiction: Congressional Oversight in Court

Article By: Daniel Epstein 2020 PEPP. L. REV. 37 (2020) On July 9, 2020, in Trump v. Mazars USA, LLP and Trump v. Deutsche Bank AG, the Supreme Court held that the lower courts did not adequately consider the separation of powers concerns attendant to congressional subpoenas for presidential information. Given that the question presented …

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2020 Annual Volume

/ July 17, 2020

“Magic Words” and Original Understanding: An Amplified Clear Statement Rule to Abrogate Tribal Sovereign Immunity

Article By: Justin W. Aimonetti 2020 PEPP. L. REV. 1 (2020) The Indian plenary power doctrine—an invention of the late nineteenth-century Supreme Court—grants Congress exclusive authority to legislate with respect to Indian tribes, including the ability to abrogate tribal sovereign immunity. Under current doctrine, Congress must “unequivocally express” its intent to abrogate the sovereign immunity …

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2019 Annual Volume

/ May 18, 2020

A More Perfect Union: The Emoluments Clause

Article By: Grant C. Rasak 2019 PEPP. L. REV. 103 (2020) Dedicated to “We the People,” with Special Recognition to Professor Pushaw, James Wilson Endowed Professor of Law at Pepperdine Caruso School of Law. America’s Framers crafted the Emoluments Clause to preserve institutional integrity, mitigate undue influences, and best serve the American People. The Emoluments …

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Issue 4 - May 2020

/ May 1, 2020

Emerging Technology & Regulation Panel Transcript

Panel By: Bill Goodwin, Ryan Hagemann, Brooks Rainwater, Caleb Watney 47 PEPP. L. REV. 965 (2020) Download the Full Transcript

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Issue 4 - May 2020

/ May 1, 2020

Modern Privacy Advocacy: An Approach at War with Privacy Itself?

Article By: Justin “Gus” Hurwitz & Jamil N. Jaffer 47 PEPP. L. REV. 955 (2020) This Article argues that the modern concept of privacy itself, particularly as framed by some of its most ardent advocates today, is fundamentally incoherent. The Article highlights that many common arguments made in support of privacy, while initially seeming to …

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Issue 4 - May 2020

/ May 1, 2020

The GDPR and the Consequences of Big Regulation

Article By: Matthew R. A. Heiman 47 PEPP. L. REV. 945 (2020) This Article summarizes the key features of the European Union’s General Data Privacy Regulation (GDPR) that became effective on May 25, 2018. The stated purpose of the law is to give individuals greater control over personal information that is handled by companies and …

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Issue 4 - May 2020

/ May 1, 2020

When Considering Federal Privacy Legislation

Article By: Neil Chilson 47 PEPP. L. REV. 917 (2020) Legislators, advocates, and business interests are proposing federal privacy legislation with new urgency. The United States has a long-established federal framework for addressing commercial privacy concerns, including general consumer protection law and sector-specific legislation. But the calls to expand or replace this approach have grown …

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Issue 4 - May 2020

/ May 1, 2020

Consumer Welfare & The Rule of Law: The Case Against the New Populist Antitrust Movement

Article By: Elyse Dorsey, Geoffrey A. Manne, Jan M. Rybnicek, Kristian Stout, and Joshua D. Wright 47 PEPP. L. REV. 861 (2020) Populist antitrust notions suddenly are fashionable again. At their core is the view that antitrust law is responsible for a myriad of purported socio-political problems plaguing society today, including but not limited to …

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2019 Annual Volume

/ April 10, 2020

Fight or Flight: The Ninth Circuit’s Advancement of Textualism During an Era of Intentionalism in United States v. Lozoya

Article By: Zachary Remijas 2019 PEPP. L. REV. 89 (2020) The modern complexities of global interaction and accessibility have recently forced some federal courts to reconsider standards for determining proper venue for criminal defendants who commit offenses while engaged in transportation, particularly those involving interstate commerce and crimes spanning multiple districts. These courts’ application of …

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Issue 3 - March 2020

/ March 27, 2020

Federal Protections for “Fur-Babies”: A Legislative Proposal

Article By: Rebecca Ferrari 47 PEPP. L. REV. 821 (2020) Americans love their animals, but America doesn’t protect them. Across the country, animals continue to be classified as mere property, undeserving of any basic rights and unprotected by the animal welfare statutes that do exist, but often remain unenforced. This Article proposes a comprehensive animal …

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Issue 3 - March 2020

/ March 27, 2020

Contracts and the Constitution in Conflict: Why Judicial Deference to Religious Upbringing Clauses Infringes on the First Amendment

Article By: Elica Zadeh 47 PEPP. L. REV. 777 (2020) When a Hasidic person files for divorce under New York law, either party to the marriage may invoke a declaratory judgment action to establish certain rights in a settlement agreement. If children are involved, such an agreement may include a religious upbringing clause, dictating that …

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Issue 3 - March 2020

/ March 27, 2020

Compelled Speech and the Irrelevance of Controversy

Article By: Seana Valentine Shiffrin 47 PEPP. L. REV. 731 (2020) NIFLA v. Becerra stealthily introduced a new First Amendment test for compelled speech that has injected chaos into the law of compelled disclosures. NIFLA reinterpreted the requirement that compelled disclosures contain only “purely factual and uncontroversial information” in a way that imbued independent force …

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Issue 3 - March 2020

/ March 27, 2020

Men’s Reproductive Rights: A Legal History

Article By: Mary Ziegler 47 PEPP. L. REV. 665 (2019) This Article offers the first legal history of men’s procreative rights, filling a gap in scholarship on assisted reproduction, constitutional law, and social movements. A rich literature addresses women’s procreative rights in contexts from abortion to infertility. By comparison, we know relatively little about the …

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Issue 3 - March 2020

/ March 27, 2020

Creative Destruction: Copyright’s Fair Use Doctrine and the Moral Right of Integrity

Article By: Cathay Y. N. Smith 47 PEPP L. REV. 601 (2020) This Paper explores the role of copyright’s fair use doctrine as a limit on the moral right of integrity. The moral right of integrity gives an author the right to prevent any distortion, modification, or mutilation of their work that prejudices their honor …

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Issue 2 - March 2020

/ March 8, 2020

“Christian Traditions, Culture, and Law”: An Update and A Few Reflections

Essay By: Robert F. Cochran, Jr. 47 PEPP. L. REV. 563 (2020) Using Richard Niebuhr’s description of Christian approaches to culture, this Article examines the way Christians approach law, focusing on developments over the last 20 years. During that time, synthesists have continued to develop natural law, seeking an understanding of law based on shared …

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Issue 2 - March 2020

/ March 8, 2020

One Step Enough

Essay By: Steven D. Smith 47 PEPP. L. REV. 549 (2020) The growing divide between contemporary law and culture and Christianity forces Christians both in general and in the academy to confront difficult choices. The difficulty of those choices was manifest in the most recent presidential election. In this situation, some Christians take an aggressive …

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Issue 2 - March 2020

/ March 8, 2020

Jesus Came “Not to Abolish the Law but to Fulfill It”: The Sermon on the Mount and Its Implications for Contemporary Law

Essay By: David VanDrunen 47 PEPP. L. REV. 523 (2020) This Article interprets Matthew 5:17–48 and argues that, because Jesus came not to abolish but to fulfill the law and the prophets, the Old Testament law takes on a new form for New Testament Christians. The law of God has been refracted through the ministry …

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Issue 2 - March 2020

/ March 8, 2020

Divided by the Sermon on the Mount

Essay By: David Skeel 47 PEPP. L. REV. 495 (2020) This Essay, written for a festschrift for Bob Cochran, argues that the much-discussed friction between evangelical supporters of President Trump and evangelical critics is a symptom of a much deeper theological divide over the Sermon on the Mount, where Jesus told his disciples to turn …

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Issue 2 - March 2020

/ March 6, 2020

Comparing Literary and Biblical Hermeneutics to Constitutional and Statutory Interpretation

Essay By: Robert J. Pushaw, Jr. 47 PEPP. L. REV. 463 (2020) Interpreters determine the meaning of language. To interpret literary and biblical texts, scholars have developed detailed rules, methods, and theories of human understanding. This branch of knowledge, “hermeneutics,” features three basic approaches. First, “textualists” treat words as directly conveying their ordinary meaning to …

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Issue 2 - March 2020

/ March 6, 2020

The Metaphorical Bridge Between Law and Religion

Essay By: John Witte, Jr. 47 PEPP. L. REV. 435 (2020) This Article explores the role of metaphors in shaping our thought and language in general, and in the fields of law and religion in particular. Drawing on modern cognitive theorists like George Lakoff and Mark Johnson, the Article distinguishes and illustrates the roles of …

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Issue 2 - March 2020

/ March 6, 2020

The Dutch Effect: Kuyper and Neo-Calvinism in Professor Cochran’s Scholarship

Essay By: David S. Caudill 47 PEPP. L. REV. 419 (2020) One of the obvious influences on Bob Cochran’s scholarship is the Dutch Calvinist tradition, especially as represented in the writings by or about Abraham Kuyper (1837–1920). Even though Cochran was neither Dutch nor a member of a Reformed church, Cochran found inspiration and compelling …

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Issue 2 - March 2020

/ March 6, 2020

Celebrating Robert Cochran and the Future of “Embodied” Christian Legal Scholarship

Article By: Barbara Armacost 47 PEPP. L. REV. 397 (2020) The occasion for this Article is a festschrift for Professor Robert (“Bob”) Cochran. I celebrate Bob’s significant scholarly contributions to the maturing of Christian Legal Scholarship. He applied a Christian perspective to legal issues, hosted conferences, mentored Christian Legal Scholars, and edited books of essays …

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Issue 2 - March 2020

/ March 6, 2020

Bob Cochran on Law and Lawyering: A Catholic Perspective

Essay By: Stephen M. Bainbridge 47 PEPP. L. REV. 371 (2020) This Essay is a contribution to a festschrift honoring Pepperdine law professor Robert Cochran. In addition to his many other professional accomplishments, Professor Cochran is a leading figure in the study of Law and Christianity. One strain of Law and Christianity scholarship focuses on …

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Issue 2 - March 2020

/ March 6, 2020

The Communitarian Work and Vision(s) of Robert Cochran (and Thomas Shaffer)

Essay By: Richard W. Garnett 47 PEPP. L. REV. 361 (2020) Professor Robert Cochran’s work and thought were powerfully shaped by those of his friend, mentor, and teacher, the late Professor Thomas Shaffer, a towering figure in the religious lawyering movement. A leading theme in Shaffer’s writing, one that has continued through and been developed …

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Issue 2 - March 2020

/ March 6, 2020

Abraham Lincoln and the Cardinal Virtue of Practical Reason

Essay By: Brett G. Scharffs 47 PEPP. L. REV. 341 (2020) Practical wisdom is an elusive concept. This Article focuses on a case in which Abraham Lincoln, prior to his election as President, participated (or more accurately did not participate) to frame a discussion of what practical wisdom means and how it makes a difference …

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Issue 2 - March 2020

/ March 6, 2020

The Practice of Law as Christian Discipleship

Essay By: Nathan S. Chapman 47 PEPP. L. REV. 331 (2020) “Can the ordinary practice of law be a religious calling?” In a number of scholarly books and articles, as a teacher, and as a mentor, Robert Cochran has answered this question with a resounding “yes.” This Essay, part of a festschrift published in Bob’s …

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Issue 2 - March 2020

/ March 6, 2020

The Beatitudes, Lawyers, and Bob Cochran

Essay By: Amelia J. Uelman 47 PEPP. L. REV. 311 (2020) Written on the occasion of a celebration of the work and scholarship of Bob Cochran, this reflection draws on his scholarship and also on his teaching and work to build vibrant communities of commitment, service, and scholarship at the intersection of religion, law, and …

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Issue 2 - March 2020

/ March 6, 2020

“Agape” and the Life and Work of Robert F. Cochran, Jr.

Essay by: Angela C. Carmella 47 PEPP. L. REV. 287 (2020) The life and work of Robert Cochran can be summed up in one word: discipleship. Professor Cochran’s work reflects deeply on Jesus’s words and ministry—His agapic love for all humanity—as they relate to the substance of law and its administration. Professor Cochran’s work establishes …

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Issue 2 - March 2020

/ March 6, 2020

The Professor as Institutional Entrepreneur

Essay By: Roger P. Alford 47 PEPP. L. REV. 269 (2020) Law professors are all about ideas, and the creation of an institute, clinic, or center within a law school is the instantiation of an idea. Ideas embodied in law school institutions become crystallized in the fabric of a school, changing its culture, internalizing its …

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Issue 2 - March 2020

/ March 6, 2020

Ecumenical Evangelical Legal Thought: The Contributions of Robert F. Cochran, Jr.

Essay By: William S. Brewbaker III 47 PEPP. L. REV. 231 (2020) This Essay organizes an assessment of Robert F. Cochran’s scholarly contributions around the theme of “ecumenical evangelical legal thought.” Professor Cochran’s work bears the hallmarks of evangelicalism in its emphasis on the Bible, its practical focus, and its willingness to cross institutional and …

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Issue 2 - March 2020

/ March 5, 2020

Festschrift Response: “With A Grateful Heart”

Response by: Robert F. Cochran, Jr. 47 PEPP. L. REV. ix (2020) Pictured above are Presenters at the Festschrift in Honor of Bob Cochran, February 1, 2019: Top Row: Paul Caron (Pepperdine), Ken Elzinga (University of Virginia), Roger Alford (Notre Dame), David Caudill (Villanova). Middle Row: Angela Carmella (Seton Hall), Zach Calo (Hamad bin …

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Issue 2 - March 2020

/ March 5, 2020

Celebrating the Work of Professor Bob Cochran: An Introduction

Introduction by: Derek T. Muller 47 PEPP. L. REV. iii (2020) Pictured above are Presenters at the Festschrift in Honor of Bob Cochran, February 1, 2019: Top Row: Paul Caron (Pepperdine), Ken Elzinga (University of Virginia), Roger Alford (Notre Dame), David Caudill (Villanova). Middle Row: Angela Carmella (Seton Hall), Zach Calo (Hamad bin Khalifa …

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Issue 2 - March 2020

/ March 5, 2020

Celebrating the Work and the Life of Bob Cochran

Introduction by: Dean Paul L. Caron 47 PEPP L. REV. i (2020) Pictured above are Presenters at the Festschrift in Honor of Bob Cochran, February 1, 2019: Top Row: Paul Caron (Pepperdine), Ken Elzinga (University of Virginia), Roger Alford (Notre Dame), David Caudill (Villanova). Middle Row: Angela Carmella (Seton Hall), Zach Calo (Hamad bin …

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2019 Annual Volume

/ February 24, 2020

No Safe Spaces: A Distorted Image of a Clear Problem

Review By: Michael Conklin 2019 PEPP. L. REV. 80 (2020) This is a critical analysis of the documentary No Safe Spaces. The movie features comedian Adam Carolla and conservative talk show host Dennis Prager. Depending on the source, the movie is either the most necessary and prescient documentary ever or the most harmful. Unfortunately, the …

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2019 Annual Volume

/ January 28, 2020

The First Amendment and Data Privacy

Article By: Kathryn Peyton 2019 PEPP. L. REV. 51 (2020) Given the growing ubiquity of digital technology’s presence in people’s lives today, it is becoming increasingly more necessary to secure data privacy protections. People interact with technology constantly, ranging from when engaging in business activates, such as corresponding through emails or doing research online, to …

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Issue 1 - December 2019

/ January 11, 2020

Placebo Marks

Article By: Jake Linford 47 PEPP. L. REV. 45 (2019) Scholars often complain that sellers use trademarks to manipulate consumer perception. This manipulation ostensibly harms consumers by limiting their ability to make informed choices. For example, holding other things constant, consumers spend more money on goods with a high-performance reputation. Critics characterize that result as …

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Issue 1 - December 2019

/ January 11, 2020

When Is Due Process Due?: The Impact of Title IX Sexual Assault Adjudication on the Rights of University Students

Article By: Rachael A. Goldman 47 PEPP. L. REV. 185 (2019) As a part of the Educational Amendments of 1972, Title IX was created to address sex discrimination in sports programs receiving federal funding. However, its scope has ballooned tremendously over the years to include a variety of conduct occurring on college campuses. Currently, Title …

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Issue 1 - December 2019

/ January 11, 2020

Administrative Law: Whose Job Is It Anyway?

Article by: Allison Mather 47 PEPP. L. REV. 143 (2019) This Note examines the current state of judicial deference to administrative agencies and suggests modifying the doctrine to better comport with the Constitution. It examines the history of administrative agencies and the rise of judicial deference. The Note explores the present-day applications of judicial deference …

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Issue 1 - December 2019

/ January 11, 2020

Filling the Illinois Federal District Court Vacancies

Article By: Carl Tobias 47 PEPP. L. REV. 115 (2019) President Donald Trump repeatedly argues that appellate court appointments constitute his major success. The President and the United States Senate Republican Party majority have established records by approving fifty very conservative, young, and capable appellate court jurists. However, their confirmations have exacted a toll, particularly …

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Issue 1 - December 2019

/ January 11, 2020

Testing the First Amendment Validity of Laws Banning Sexual Orientation Change Efforts on Minors: What Level of Scrutiny Applies After Becerra and Does a Proportionality Approach Provide a Solution?

Article By: Clay Calvert 47 PEPP. L. REV. 1 (2019) This Article examines the standard of scrutiny courts should apply when testing the validity of laws banning speech-based sexual orientation change efforts (SOCE) against First Amendment challenges. Justice Clarence Thomas’s 2018 opinion for a five-justice conservative majority of the United States Supreme Court in National …

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2019 Annual Volume

/ November 15, 2019

A Call for America’s Law Professors to Oppose Court-Packing

Article By: Bruce Ledewitz 2019 PEPP. L. REV. 1 (2019) A Court-packing proposal is imminent. Mainstream Democratic Party Presidential Candidates are already supporting it. The number of Justices on the Supreme Court has been set at nine since 1869, but this is merely a statutory requirement. As soon as Democrats regain control of the Presidency …

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2019 Annual Volume

/ November 15, 2019

Court Expansion and the Restoration of Democracy: The Case for Constitutional Hardball

Article by: Aaron Belkin 2019 PEPP. L. REV. 19 (2019) Neither electoral politics, norms preservation, nor modest good government reform can restore the political system because they cannot mitigate the primary threat to the American democracy, Republican radicalism. Those who believe otherwise fail to appreciate how and why radicalism will continue to impede democratic restoration …

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