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constitutionality of a state statute is presumptively a judicial function.40 This argument has a firm footing in the state courts. Consider City of
” (footnote omitted)). 40. Updegraph, 11 Serg. & Rawle at 399, 403. 41. Id. at 398-99. The court rejected the defendant’s argument that the fact
deduce nonobviousness from commercial success, Professor Edmund W. Kitch argues that each of these inferences could be quite weak.40 Of course
Clause.39 Causes of action have a history of treatment as property for due process purposes,40 and, because they are causes of action, contractual
Protection Agency and California to adopt vehicle emissions standards.40 Because the state’s power to regulate is secured by a federal statute, this
their share of Medicaid and unemployment benefits. Indeed, over 40% of states’ expenditures go to public-welfare programs such as Medicaid, Temporary
excess and clarify which branch and level of government possessed the ultimate authority to regulate the conduct of federal prosecutors.40 After
considered whether the order was “consistent with the general policies embodied in Rule 23.”40 It did, however, “observe that the order involved
as a threat to liberty. 40 Efforts to strike the balance between liberty and safety continue today. B. Incorporating Peel’s Principles into
at 516 (first quoting Dow Chem., 476 U.S. at 239; and then quoting Kyllo v. United States, 533 U.S. 27, 40 (2001)). Id. (quoting Matthew B. Kugler