Concurring Opinions » Columbia Law Review

Sidebar Publishes Response to “Rethinking Free Speech and Civil Liability”

Columbia Law Review — Mon, 16 Nov 2009 15:51:27 +0000

Columbia Law Review’s Sidebar is pleased to announce the publication of a response to Professors Solove and Richards’ article, Rethinking Free Speech and Civil Liability, by Professor Timothy Zick of William and Mary Law School.

In their article, Professors Solove and Richards propose a new theory for when civil liability for speech will trigger First Amendment protections that focuses on the nature of the government power involved. In his response, Professor Zick critically examines the choice and meaning of power, and the boundaries that a power-defining approach would draw.

Sidebar Publishes Responses to October Issue of the Columbia Law Review

Columbia Law Review — Wed, 28 Oct 2009 13:13:08 +0000

Columbia Law Review’s Sidebar is pleased to announce the publication of three responses in conjunction with the October issue of the Columbia Law Review.

The first piece is a response to Noah D. Zatz’s article, Managing the Macaw: Third-Party Harassers, Accommodation, and the Disaggregation of Discriminatory Intent by Professor Tristin K. Green of Seton Hall Law School. In his Article Professor Zatz exploits the anomaly in Title VII doctrine of employer liability for third-party harassment to develop a new theory of employment discrimination law which relies on the ideas of membership causation and employer responsibility. In the Response, Professor Green criticizes Professor Zatz’s discussion of the applicability of his account to employer liability for the bias of a subordinate. She argues that by failing to distinguish between direct and vicarious liability Professor Zatz creates a risk that courts will limit employer liability based on considerations of “notice” and “feasibility” even where traditionally strict liability has been imposed.

The second is a response to Darrell A.H. Miller’s article Guns as Smut: Defending the Home-Bound Second Amendment by Professor Eugene Volokh of the UCLA School of Law. In his Article, Professor Miller suggests treating the Second Amendment right to keep and bear arms for self-defense the same as the right to own and view adult obscenity under the First Amendment—a robust right in the home, subject to near-plenary restriction by elected government everywhere else. In the Response Professor Volokh challenges the analogy between guns and obscenity. He notes that obscenity is one of the least protected and marginal categories of speech, while the personal right to bear arms is at the core of the second amendment.

Finally, we have published a reply to Professor Volokh by Professor Miller in which he points out that much of Professor Volokh’s Response is a challenge to the accuracy of the analogy, rather than to arguments that underpin the analogy and independently justify the home-bound Second Amendment.

Sidebar Publishes Essay on the Reference Class Problem

Columbia Law Review — Mon, 12 Oct 2009 00:41:30 +0000

Columbia Law Review’s Sidebar is pleased to announce the publication of Law, Statistics, and the Reference Class Problem, by Professor Edward Cheng of Brooklyn Law School.

In this Preview of his forthcoming Essay, Professor Cheng introduces the reference class problem. The reference class problem is the problem of how to define the appropriate class to compare a specific case to. For example, when estimating the value of a house one typically looks at comparable houses: But which attributes do we use to determine which houses are comparable to the house we are trying to value? Square feet? Lot size? Number of bedrooms? The class we choose will effect the valuation of our house. In a legal context, different parties may choose different reference classes in order to advance their case and the decisionmaker will have to determine which one is better. As Professor Cheng notes, to date this decision has been largely made on intuition; however, he proposes a more principled method for choosing one over the other.

Law, Statistics, and the Reference Class Problem

Sidebar Publishes Essay on Remedial Rationing

Columbia Law Review — Wed, 19 Aug 2009 01:04:27 +0000

Columbia Law Review’s Sidebar is pleased to announce the publication of Melendez-Diaz v. Massachusetts, Rodriguez v. City of Houston, and Remedial Rationing by Professor Jennifer Laurin of the University of Texas School of Law.

In her Essay, Professor Laurin identifies a trend in recent Supreme Court jurisprudence to restrict the enforcement of criminal procedure rights to either criminal defense or civil rights litigation, something she calls remedial rationing. Using Melendez-Diaz v. Massachusetts—a criminal appeal decided by the Supreme Court last term—and Rodriguez v. City of Houston—a civil rights suit which the author participated in litigating—as examples, Professor Laurin discusses the prospects for each type of remedy to regulate law enforcement conduct. She concludes that neither regime can adequately protect criminal defendants’ rights on its own, and that the two regimes work together in important ways.

Sidebar Publishes Companion Piece to Federalization Snowballs

Columbia Law Review — Mon, 13 Jul 2009 10:06:17 +0000

Columbia Law Review’s Sidebar is pleased to announce the publication of a companion piece to Federalization Snowballs: The Need for National Action in Medical Malpractice Reform by Professor Abigail Moncrieff of Boston University.

In her Essay, Professor Moncrieff discussed the way in which federal healthcare programs have effected states incentives by allowing states to externalize some of the costs of their malpractice policies, resulting in a need for federal regulation in that area. She called this a “federalization snowball”—federal intervention through spending programs creates a need for further federal regulation in areas that are traditionally state functions.

In her companion piece, A Closer Look at the Federalization Snowball, Professor Moncrieff explores the scope of the problem of federalization snowballs and its historical and theoretical underpinnings in a debate over the interpretation of the Spending Clause.

Sidebar Publishes Response to Heinous, Atrocious and Cruel: Apprendi, Indeterminate Sentencing, and the Meaning of Punishment

Columbia Law Review — Thu, 02 Jul 2009 16:39:05 +0000

Columbia Law Review’s Sidebar is pleased to announce the publication of a response to W. David Ball’s article Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentencing, and the Meaning of Punishment by Professor Berman of Ohio State University’s Moritz College of Law.

In his article Ball explores the ramifications of Apprendi for indeterminate sentencing systems where parole boards may deny parole based on their findings of fact about the original crime, even when these findings contradict the jury’s. Ball argues that while parole boards may be competent to make factual determinations about a prisoner’s rehabilitation, juries, as the moral representatives of the community, must find facts related to retribution.

In his response, Professor Berman challenges the idea that modern juries can act as the conscience of the community. He points out that the vast majority of criminal cases never reach a jury and that restrictions on juries prevent them from being able to effectively express moral condemnation through their findings. Professor Berman argues instead that in order to develop sound procedural rules for sentencing we must pay greater attention to rights other than the jury right.

Columbia Law Review, Volume 109 Issue 4 (May 2009)

Columbia Law Review — Tue, 30 Jun 2009 17:25:57 +0000

Columbia Law Review, Volume 109 Issue 4 (May 2009)

Articles

An Aggregate Approach to Antitrust: Using New Data and Rulemaking to Preserve Drug Competition

C. Scott Hemphill

Revealing Choices: Using Taxpayer Choice to Target Tax Enforcement

Alex Raskolnikov

Notes

Between Healthy and Hartman: Probable Cause in Retaliatory Arrest Cases

The Lorax State: Parens Patriae and the Provision of Public Goods

Essay

Federalization Snowballs: The Need for National Action in Medical Malpractice Reform

Abigail R. Moncrieff

Sidebar Publishes Response to Revealing Choices: Using Taxpayer Choice to Target Tax Enforcement

Columbia Law Review — Fri, 26 Jun 2009 18:45:25 +0000

Columbia Law Review’s Sidebar is pleased to announce the publication of a response to Revealing Choices: Using Taxpayer Choice to Target Tax Enforcement by Alex Raskolnikov.

In his article, Professor Raskolnikov argues that the current tax enforcement regime could better take account of differing taxpayer motivations if it were replaced with two regimes: a “deterrence regime,” similar to the current regime but with higher penalties, and a “compliance regime,” which would feature lower penalties but would include procedural mechanisms, such as a pro-government presumption in litigation and a requirement to submit to binding arbitration, which would tend to resolve disputes in the government’s favor. Raskolnikov argues that requiring a choice between these two regimes would serve to separate those taxpayers who seek to game the system from those who do not, so that enforcement mechanisms could be targeted appropriately, leading ultimately to gains in compliance and efficiency.

In his response, Professor Lawrence Zelenak argues that recently enacted reporting and disclosure requirements aimed at tax shelters already serve to separate gamers from the majority of taxpayers. Professor Zelenak suggests that the current regime may be preferable to Raskolnikov’s proposal because it addresses the most important category of gamers (users of tax shelters) without forcing some taxpayers into a deterrence regime, because it is more equitable to improve compliance by increasing the probability of detection rather than by increasing penalties, and because a pro-government presumption and a requirement of binding arbitration represent a drastic and possibly detrimental change in the current regime as applied to the ordinary taxpayer.

Sidebar publishes response to Judging the Voting Rights Act

Columbia Law Review — Wed, 03 Jun 2009 15:27:03 +0000

Columbia Law Review’s Sidebar is pleased to announce the publication of a response to Judging the Voting Rights Act by Adam B. Cox and Thomas J. Miles.

Professors Cox and Miles’ study found that judicial ideology and race are closely related to findings of liability in voting rights cases. In their response Professors Staudt and VanderWeele argue that, because Cox and Miles failed to investigate the possibility of dependencies between the variables they were studying, their results may be biased. Staudt and VanderWeele develop an alternative approach for exploring the effects of judicial attributes on voting using causal directed acyclic graphs. This methodology can help empirical researchers investigate the relationships between variables in order to posit statistical models with appropriate controls and to identify true cause and effect relationships when they exist. While this methodology has become popular in a number of disciplines—including statistics, biostatistics, epidemiology, and computer science—and is widely believed to be a valuable tool for empirical research, it has yet to appear in the empirical law literature. Staudt and VanderWeele offer a brief introduction of the method in their response in order to initiate discussion as to its worth in empirical legal studies.

Columbia Law Review, Volume 109 Issue 3 (March 2009)

Columbia Law Review — Thu, 30 Apr 2009 20:42:36 +0000

Columbia Law Review, Volume 109 Issue 3 (March 2009)

Article

Contracting for Innovation: Vertical Disintegration and Interfirm Collaboration

Ronald J. Gilson, Charles F. Sabel & Robert E. Scott

Notes

Paradox of Presumptions: Seller Warranties and Reliance Waivers in Commercial Contracts

Kabir Masson

Equal Justice Under Law: Post-Booker, Should Federal Judges Be Able to Depart from the Federal Sentencing Guidelines to Remedy Disparity Between Codefendants’ Sentences?

Ryan Scott Reynolds

Essay

Corporate Philanthropy and the Market for Altruism

M. Todd Henderson & Anup Malani

Sidebar Publishes Response to The Federal Common Law of Nations

Columbia Law Review — Tue, 28 Apr 2009 22:40:11 +0000

Columbia Law Review’s Sidebar is pleased to announce the publication of a response to The Federal Common Law of Nations by Anthony J. Bellia Jr. and Bradford R. Clark.

In their Article Professors Bellia and Clark describe the role that the law of nations has played throughout American history. They argue that federal courts have not viewed enforcement of the law of nations as an Article III power to fashion federal common law, but have instead applied rules derived from the law of nations as a way to implement the political branches’ Article I and Article II powers to recognize foreign nations, conduct foreign relations, and decide momentous questions of war and peace. This allocation of powers approach, they contend, best explains the most important federal cases involving the law of nations across American history.

Professor Ernest Young’s Response questions the historical account provided by Bellia and Clark on two grounds: first, that the debate over reception of the common law at the federal Constitutional Convention shows greater early skepticism about judge-made common law than Bellia and Clark suggest; and second, that the jurisdictional provisions of Article III covering cases implicating foreign affairs were not intended fully to centralize power over such cases in federal courts because they left concurrent jurisdiction in the state courts. In addition Professor

Young questions the extent to which the Founding Era history is directly relevant to contemporary debates about how to treat customary international law (CIL). He contends that what does the real work in the Bellia and Clark approach is simply constitutionally-grounded concerns about the separation of powers in foreign affairs cases, not anything about CIL per se.

Sidebar Publishes Responses to The Subjective Experience of Punishment

Columbia Law Review — Fri, 13 Mar 2009 17:48:04 +0000

Columbia Law Review’s Sidebar is pleased to announce the publication of two responses to The Subjective Experience of Punishment by Adam J. Kolber.

In this Essay Professor Kolber argues that any successful justification of punishment must take into account how the punishment is experienced by the individual offender. Thus, a retributivist must measure punishment severity in a manner that is sensitive to individuals’ experiences of punishment to avoid punishing people more than is justified. Similarly, a consequentialist must consider the individual experience of punishment in order to create a

system that is optimally deterrent.The Responses challenge these claims.

Miriam H. Baer responds to the Essay from a consequentialist perspective, arguing that sentencing is just one variable in deterrence and that calibrating punishment based on an individual’s subjective reaction to punishment, without taking into account the way in which law enforcement monitors and detects crime, may not have the deterrent effects Kolber claims.

Kenneth W. Simons responds from a retributivist perspective, arguing that retributivists need not calibrate punishment to an offender’s subjective experience of punishment because objective deprivations are also relevant to retribution and that, to the extent that subjective experiences are relevant, it is unclear which mental states should be considered in evaluating the severity of a particular sentence.