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Author: Columbia Law Review

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

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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.

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Sidebar publishes response to Judging the Voting Rights Act

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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.

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

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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

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Sidebar Publishes Response to The Federal Common Law of Nations

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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.

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Sidebar Publishes Responses to The Subjective Experience of Punishment

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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.

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Columbia Law Review, Volume 109 Issue 2 (March 2009)

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Columbia Law Review, Volume 109 Issue 2 (March 2009)

Article

Civil Liability and Mandatory Disclosure

Merritt B. Fox

Notes

Policing the Fourth Amendment: The Constitutionality of Warrantless Investigatory Stops for Past Misdemeanors

Sameer Bajaj

The Blank Page Before You: Should the Preemption Doctrine Apply to Unwritten Practices?

Chang Derek Liu

Essay

A Bargaining Power Theory of Default Rules

Omri Ben-Shahar

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Columbia Law Review, Volume 109 Issue 1 (January 2009)

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Columbia Law Review, Volume 109 Issue 1 (January 2009)

Article

The Federal Common Law of Nations

Anthony J. Bellia Jr. & Bradford R. Clark

Notes

Discerning Discrimination in State Treatment of American Indians Going Beyond Reservation Boundaries

Shira Kieval

More Bitter Than Sweet: A Procedural Due Process Critique of Certification Periods

Amy McCamphill

Essay

The Subjective Experience of Punishment

Adam J. Kolber

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Columbia Law Review, Volume 108 Issue 8 (December 2008)

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Columbia Law Review, Volume 108 Issue 8 (December 2008)

Articles

The Promise and Peril of Corporate Governance Indices

Sanjai Bhagat, Brian Bolton & Roberta Romano

Textualism and Jurisdiction

Peter J. Smith

Notes

Calculating the Public Interest in Protecting Journalists’ Confidential Sources

David Abramowicz

RICO and the Commerce Clause: A Reconsideration of the Scope of Federal Criminal Law

Thane Rehn

Essay

Immigration Outside the Law

Hiroshi Motomura

Book Review Essay

Stumble, Predict, Nudge: How Behavioral Economics Informs Law and Policy

On Amir & Orly Lobel

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Columbia Law Review, Volume 108 Issue 7 (November 2008)

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Columbia Law Review, Volume 108 Issue 7 (November 2008)

Articles

Progressivity and Potential Income: Measuring the Effect of Changing Work Patterns on Income Tax Progressivity

Chris William Sanchirico

Market Damages, Efficient Contracting, and the Economic Waste Fallacy

Alan Schwartz & Robert E. Scott

Notes

Walking the Federalist Tightrope: A National Policy of State Experimentation for Health Information Technology

Benjamin J. Beaton

An Unintended Double Standard of Liability: The Effect of the Westfall Act on the Alien Tort Claims Act

Karen Lin

Essay

Human Welfare, Not Human Rights

Eric A. Posner

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Columbia Law Review, Volume 108 Issue 6 (October 2008)

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Columbia Law Review, Volume 108 Issue 6 (October 2008)

Articles

Reforming Securities Litigation Reform: Restructuring the Relationship Between Public and Private Enforcement of Rule 10B-5

Amanda M. Rose

Detention As Targeting: Standards of Certainty and Detention of Suspected Terrorists

Matthew C. Waxman

Notes

Following the Leader: Twombly, Pleading Standards, and Procedural Uniformity

Z.W. Julius Chen

An Antitrust Analysis of Product Hopping in the Pharmaceutical Industry

Jessie Cheng

Essay

Hedonic Adaptation and the Settlement of Civil Lawsuits

John Bronsteen

Christopher Buccafusco

Jonathan S. Masur