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 [...]]]> 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.

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 [...]]]> 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.”

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 [...]]]> 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.”

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 [...]]]> 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.

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

Article

Federalism and Federal Agency Reform

Gillian E. Metzger

Notes

Filling the Gap?  Non-Abrogation Provisions and the Assimilative Crimes Act

Sheep in Wolves’ Clothing:  Removing Parens Patriae Suits Under the Class Action Fairness Act

Essay

Stimulus and Civil Rights

Olatunde C.A. Johnson

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.

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

Articles

Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality

Adrienne D. Davis

Judicial Elections as Popular Constitutionalism

David E. Pozen

Notes

Opening Doors to Fair Housing: Enforcing the Affirmatively Further Provision of the Fair Housing Act Through 42 U.S.C. § 1983

The “Foreign Private Adviser” Exemption:  A Potential Gap in the New Systemic Risk Regulatory Architecture

Essay

Do U.S. Courts Discriminate Against Treaties?  Equivalence, Duality, and Non-Self-Execution

David H. Moore

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 [...]]]>

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.

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 [...]]]>

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.

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.

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 autonomy—one of the most familiar and intuitive theories of self-imposed moral responsibility—explains how and why, contrary to existing correspondence theories, promissory responsibility corresponds to the [...]]]>

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 autonomy—one of the most familiar and intuitive theories of self-imposed moral responsibility—explains 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.

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 [...]]]>

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.

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 [...]]]>

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.

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 [...]]]>

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.

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 [...]]]>

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)

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

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 [...]]]>

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.

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 [...]]]>

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)

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

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 [...]]]>

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.