Author: Columbia Law Review

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Sidebar Publishes Second in Series of Essays on Immigration Law

Sidebar is pleased to announce the publication of the second in our series of essays on immigration law, “Building Capacity for the Transnational Regulation of Migration” by Professor Cristina Rodríguez, currently visiting at Harvard Law School.

In this piece Professor Rodríguez argues that immigration cannot be addressed solely through unilateral regulation; rather, because migration is inherently international its management requires engagement with other governments.  She identifies some of the existing mechanisms of transnationalism in the U.S.-Mexico relationship and offers initial suggestions for their development.

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Sidebar Publishes First in Series of Essays on Immigration Law

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Over the next few months Sidebar will be publishing a series of three pieces on the current state and future direction of immigration law.  The first piece in our series is by Professor Jennifer Chacón of UC Irvine Law and is titled “Managing Migration Through Crime.”

In this piece Professor Chacón examines the criminal prosecution of migration related offenses.  She highlights the ways in which the regulation of migration has increasingly become a subject of the criminal law and discusses the explosion of migration-related criminal prosecutions over the past few years.  She then provides several examples of the use of criminal prosecutions in the migration context in order to explore an undertheorized effect of this trend, namely, that the protective features of criminal investigation and adjudication are melting away at the edges in certain criminal cases involving migration-related offenses.

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Sidebar Publishes Companion to “The Correspondence of Contract and Promise”

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Columbia Law Review’s Sidebar is pleased to announce the publication of a companion piece to  his article, “The Correspondence of Contract and Promise” by Professor Kraus of the University of Virginia School of Law.

In his article Professor Kraus claims that contract scholars have mistakenly presumed that they can assess the correspondence between contract and promise without first providing a theory of self-imposed moral responsibility that explains and justifies the promise principle.  To illustrate the dependence of correspondence accounts of contract law on a theory of self-imposed moral responsibility, Professor Kraus demonstrate how a “personal sovereignty” account of individual autonomyone of the most familiar and intuitive theories of self-imposed moral responsibilityexplains how and why, contrary to existing correspondence theories, promissory responsibility corresponds to the rights and duties recognized by contract.

In the companion piece, “Personal Sovereignty and Normative Power Skepticism,” Professor Kraus explains that according to the personal sovereignty account of promising, individuals have the normative power to undertake self-imposed moral responsibilities (i.e., moral obligations) because such a power enhances personal sovereignty.  Professor Kraus then describes the skeptical argument that has been leveled against theories of promissory obligation that posit a normative power to make a promise and argues that that argument has no force against the personal sovereignty account he offers.

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

Sidebar LogoColumbia 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.

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Sidebar Publishes Responses to October Issue of the Columbia Law Review

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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.

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Sidebar Publishes Essay on the Reference Class Problem

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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.

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Sidebar Publishes Essay on Remedial Rationing

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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. Massachusettsa criminal appeal decided by the Supreme Court last termand Rodriguez v. City of Houstona civil rights suit which the author participated in litigatingas 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.

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Sidebar Publishes Companion Piece to Federalization Snowballs

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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.

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

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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.

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

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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