Author: Columbia Law Review

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Sidebar Publishes Response to “Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality”

Columbia Law Review’s Sidebar is pleased to announce the publication of a response to Professor Adrienne Davis’s article Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality, by Professor Elizabeth M. Glazer of the Hoftra University School of Law.

In “Regulating Polygamy:  Intimacy, Default Rules and Bargaining for Equality” Professor Davis rejects the analogy between gay marriage and polygamy and instead “turns to commercial partnership law to propose some tentative default rules that might accommodate marital multiplicity, while addressing some of the costs and power disparities that polygamy has engendered.”  In her response, Professor Glazer “uses Davis’s examination of the same-sex marriage analogy to polygamy in order to examine why a better analogy—namely, that between sodomy and polygamy—has not been quite as frequently invoked.”  Professor Glazer argues that those favoring legalization of polygamous marriage should analogize it to sodomy, rather than same-sex marriage for two reasons:  (1) the effort to lift sodomy bans has been much more successful than the effort to win legal recognition for same-sex marriages and (2) sodomy and polygamy share in common a history of criminalization which same-sex marriage does not.

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Sidebar Publishes Article on Farrakhan v. Gregoire

Columbia Law Review’s Sidebar is pleased to announce the publication of  Disregarding the Results: Examining the Ninth Circuit’s Heightened Section 2 ‘Intentional Discrimination’ Standard in Farrakhan v. Gregoire” by Ryan P. Haygood of the NAACP Legal Defense & Educational Fund, Inc.

In his article, Haygood discusses the implications of the Ninth Circuit’s opinion in Farrakhan v. Gregoire, a case challenging Washington State’s felon disfranchisement law under Section 2 of the Voting Rights Act.  Haygood argues that the “court’s ruling improperly applied an intent standard in disregard of section 2′s statutory language, legislative history, and longstanding precedent.”  This ruling is important because it “effectively foreclosed any realistic possibility of relief for plaintiffs bringing felon disfranchisement challenges” and “allowed the racism permeating Washington’s criminal justice system to continue to contaminate and fundamentally undermine the state’s democratic processes.”

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Sidebar Publishes Essay on Rubin v. Eurofinance

Columbia Law Review’s Sidebar is pleased to announce the publication of Rubin v. Eurofinance:  Universal Bankruptcy Jurisdiction or a Comity of Errors? by Rebecca R. Zubaty of Paul, Weiss, Rifkind, Wharton & Garrison LLP.

In her essay, Zubaty argues that the English appeals court in Rubin v. Eurofinance missed an opportunity to modernize English rules on the recognition of foreign bankruptcy judgments.  Instead, the essay describes how the court seized on the special bankruptcy circumstances of the case to overcome traditional barriers to recognition of the original foreign judgment by a U.S. bankruptcy court.  Zubaty argues that the court’s decision will have “the immediate practical effect of subjecting any person who may have any property or interest worth attaching in the U.K. to the jurisdiction of all bankruptcy courts worldwide.”  The decision may even have broader ramifications, such as “empower[ing] courts faced with novel conflicts questions to dispense with all conventions, foreign and domestic, to achieve what they deem to be the right outcome.”

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Sidebar Publishes Response to “Judicial Elections as Popular Constitutionalism” & a Reply to that Response

Columbia Law Review’s Sidebar is pleased to announce the publication of a response to David E. Pozen’s article, Judicial Elections as Popular Constitutionalism, by Professor Neal Devins of William & Mary Law School and Nicole Mansker and a reply to that response by the original author, David Pozen. In Judicial Elections as Popular Constitutionalism, Pozen conceptualizes judicial elections as vehicles of popular constitutionalism.

In their response, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, Professor Devins and Mansker, using the recent ouster of three supreme court justices who backed same-sex marriage in Iowa as an example, find judicial elections, as they exist today, unsatisfactory tools to facilitate the goals of popular constitutionalism, rather they suggest constitutional initiatives, referendums, and easy to amend constitutions as tools better suited to advance the goals of popular constitutionalism.  Professor Devins and Mansker’s main critique of Pozen’s conceptualization centers around the facts that while judges do take into account public opinion, the advancement of constitutional dialogue does not play a role in that decision, the issues that trigger public opinion in judicial elections are rarely of a constitutional nature, the pervasive influence of business and out-of-state interests on judicial elections, and, most importantly, the lack of voter interest in either the state or federal constitutions.

In his reply to Professor Devins and Mansker in What Happened in Iowa?, Pozen argues that the recent Iowa ouster campaign corroborates, but also complicates, his theory that judicial elections serve as outlets for popular constitutionalism.  Pozen acknowledges that  many of the issues Devins and Mansker raise about judicial elections are impediments to the realization of popular constitutionalism.  But, Pozen also argues that some of the very reasons that Devins and Mansker find judicial elections unfit to advance the goals of popular constitutionalism—the resulting politicization of the courts and the focus on single issues such as the constitutional status of same-sex marriage that was at issue in Iowa—are actually testaments to, rather than indictments of, the capacity of judicial elections to play this role.  Pozen concludes his reply with a note on the prospects of judicial election reform.

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Columbia Law Review, Volume 111 issue 1 (January 2011)

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Sidebar Publishes Essay on Reforming the American Land Title Recording System

The Columbia Law Review Sidebar is pleased to announce the publication of Foreclosures and the Failure of the American Land Title Recording System, by Professor Tanya D. Marsh of Wake Forest Law School.

In her essay, Professor Marsh argues that the current mortgage crisis should serve as a wake-up call for an overdue modernization of the American land title recording system.  The essay describes how the current public land title recording system is lacking and suggests how it can be improved to lessen the chance of such problems in the future.  The essay goes beyond other recent proposals for the modernization of the American system of land title recording by proposing a radical solution:  the gradual federalization of land title records.

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Columbia Law Review, Volume 110, Issue 8 (Dec. 2010)

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Sidebar Publishes Response to “Stare Decisis in the Office of Legal Counsel”

Columbia Law Review’s Sidebar is pleased to announce the publication of a response to Professor Trevor W. Morrison’s article, Stare Decisis in the Office of Legal Counsel, by Professor John C. Dehn of the United States Military Academy.   In Stare Decisis in the Office of Legal Counsel, Professor Morrison empirically demonstrates that OLC legal opinions serve as a form of binding precedent for that office, and posits that there are many good reasons for giving those opinions stare decisis effect.   Professor Dehn responds, addressing only the normative theoretical inquiry and making one essential point:  Professor Morrison’s analysis relies heavily upon institutional considerations and potentially problematic OLC perceptions of its role.  The response argues that Professor Morrison does not consider, and therefore potentially undervalues, the proper effect of an OLC attorney’s individual ethical and legal obligations.  The response details potentially problematic OLC practices as including its identification of the opinion-requesting agency—the President and/or the executive branch—as the client.   The response concludes that these factors may generate consistent, executive-friendly error in OLC legal opinions and such error diminishes the interpretive value of OLC precedent.

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Sidebar Publishes Response to “A Practical Solution to the Reference Class Problem”

Columbia Law Review’s Sidebar is pleased to announce the publication of a response to Professor Edward K. Cheng’s essay, A Practical Solution to the Reference Class Problem, by Professor James Franklin of the University of New South Wales.

In “A Practical Solution to the Reference Class Problem,” Edward K. Cheng surveys the ways in which the problem arises in legal contexts.  Cheng argues that a practical solution to the problem lies in modern “model selection” methods which decide on the appropriate complexity of a model.  James Franklin responds that a simpler area of recent statistics, the theory of feature selection methods, is more relevant.  Part I of the Essay argues that the correct reference class with which to compare a case is the set of cases which share with it all relevant features.  Part II discusses model complexity and argues that Cheng’s approach is workable, but that the statistical literature provides equally credible alternative approaches, based on smoothness instead of simplicity.