Mark A. Graber :: The conventional constitutional canon and constitutional anticanon promote courts as powerful institutions. But neither the canonical nor the anticanonical constitutional decisions by the Supreme Court have produced the wonderful results or horrible evils sometimes attributed to them. In many cases, elected officials made cotemporaneous constitutional decisions that had as much influence as the celebrated or condemned judicial rulings. More often than not, judicial rulings matter by changing the political dynamics than by directly changing public policy. READ MORE   

Suzanna Sherry :: In this response to Professor Dan Kahan’s Foreword, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, Professor Suzanna Sherry argues that while Kahan accurately describes the contemporary “neutrality crisis” and the consequent popular mistrust of the Supreme Court, he has mistaken its cause and thus proposes the wrong solution. READ MORE

Mark Tushnet :: In this response to Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, Professor Mark Tushnet raises two potential problems with Professor Dan Kahan’s argument that the Supreme Court can restore public faith in its neutrality by avoiding “motivated reasoning” and instead writing [...]]]>  

Democracy’s Distrust: Contested Values and the Decline of Expertise

Suzanna Sherry :: In this response to Professor Dan Kahan’s Foreword, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, Professor Suzanna Sherry argues that while Kahan accurately describes the contemporary “neutrality crisis” and the consequent popular mistrust of the Supreme Court, he has mistaken its cause and thus proposes the wrong solution. READ MORE

“I Couldn’t See It Until I Believed It”: Some Notes on Motivated Reasoning in Constitutional Adjudication

Mark Tushnet :: In this response to Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, Professor Mark Tushnet raises two potential problems with Professor Dan Kahan’s argument that the Supreme Court can restore public faith in its neutrality by avoiding “motivated reasoning” and instead writing opinions that affirm the values of citizens with strikingly different cultural orientations. READ MORE
 
 

Special Issue: Understanding Law on its Own Terms: Essays on the Occasion of Ernest Weinrib’s Killam Prize

In 2009, the internationally leading scholar of private law and Canada’s pre-eminent legal theorist, Ernest Weinrib, was awarded the Killam Prize in the social sciences, the country’s highest honor for scholarly career achievement.  On the occasion of the prize, Weinrib presented a public lecture on Private Law and Public Right, developing a new set of ideas.  In this special issue, Weinrib’s lecture is published together with pieces by former students of his who have made important contributions to private law theory.

Editor’s Note Arthur Ripstein

Ernie’s Three Worlds Bruce Chapman

Private Law And Public Right Ernest J Weinrib

Formalism In Music And Law Allan Beever

The Idea [...]]]> University of Toronto Law Journal –  Volume 61, Number 2 /2011

Special Issue: Understanding Law on its Own Terms: Essays on the Occasion of Ernest Weinrib’s Killam Prize

In 2009, the internationally leading scholar of private law and Canada’s pre-eminent legal theorist, Ernest Weinrib, was awarded the Killam Prize in the social sciences, the country’s highest honor for scholarly career achievement.  On the occasion of the prize, Weinrib presented a public lecture on Private Law and Public Right, developing a new set of ideas.  In this special issue, Weinrib’s lecture is published together with pieces by former students of his who have made important contributions to private law theory.

Editor’s Note
Arthur Ripstein

Ernie’s Three Worlds
Bruce Chapman

Private Law And Public Right
Ernest J Weinrib

Formalism In Music And Law
Allan Beever

The Idea Of Consideration
Peter Benson

Private Law And Kantian Right
Alan Brudner

Legal Positivism As An Idea About Morality
Martin Stone

Empire And International Law: The Real Spanish Contribution Martti Koskenniemi

Distinctions Of Power And The Power Of Distinctions: A Response To Professor Koskenniemi Arthur Ripstein

FOCUS: THE AIR INDIA REPORT AND THE REGULATION OF CHARITIES AND TERRORISM FINANCING

In June 2010, the Air India Commission released its long-awaited report on the investigation of the 1985 bombing and efforts taken in Canada since that time to prevent similar terrorist attacks.  In this focus feature, experts address major issues of terrorism financing and the regulation of charities in light of the Commission’s report and other recent developments.

The Air India Report And The Regulation Of Charities And Terrorism Financing Kent Roach

Combating Terrorist Financing: Is Canada’s Legal Regime Effective? Anita I. Anand

Charities And Terrorist Financing David [...]]]> University of Toronto Law Journal – Volume 61, Number 1, 2011

Empire And International Law: The Real Spanish Contribution
Martti Koskenniemi

Distinctions Of Power And The Power Of Distinctions: A Response To Professor Koskenniemi
Arthur Ripstein

FOCUS: THE AIR INDIA REPORT AND THE REGULATION OF CHARITIES AND TERRORISM FINANCING

In June 2010, the Air India Commission released its long-awaited report on the investigation of the 1985 bombing and efforts taken in Canada since that time to prevent similar terrorist attacks.  In this focus feature, experts address major issues of terrorism financing and the regulation of charities in light of the Commission’s report and other recent developments.

The Air India Report And The Regulation Of Charities And Terrorism Financing
Kent Roach

Combating Terrorist Financing: Is Canada’s Legal Regime Effective?
Anita I. Anand

Charities And Terrorist Financing
David G. Duff

Choices And Approaches: Anti-Terrorism Law And Civil Society In The United States And The United Kingdom After September 11
Mark Sidel

REVIEW ARTICLES

A Hegelian Criminal Law
Stephen P. Garvey

Ending Impunity: Critical Reflections On The Prosecution Of Heads Of State
Renu Mandhane

Book Review

The Transformation of the Supreme Court of Canada: An Empirical Examination( DONALD R SONGER )
Benjamin Alarie

Articles

The Coercion of Trafficked Workers Kathleen Kim

IP Misuse as Foreclosure Christina Bohannan

Consent to Retaliation: A Civil Recourse Theory of Contractual Liability Nathan B. Oman

Automation and the Fourth Amendment Matthew Tokson

Essay

No Middle Ground? Reflections on the Citizens United Decision Randall P. Bezanson

Notes

(Potentially) Resolving the Ever-Present Debate over Whether Noncitizens in Removal Proceedings Have a Due-Process Right to Effective Assistance of Counsel Walter S. Gindin

Princo, Patent Pools, and the Risk of Foreclosure: A Framework for Assessing Misuse Phillip W. Goter

Holden Caulfield Grows Up: Salinger v. Colting, the Promotion-of-Progress Requirement, and Market Failure in a Derivative-Works Regime John M. Newman

Is Senator Grassley Our Savior?: The Crusade Against “Charitable” Hospitals Attacking Patients for Unpaid Bills Amanda W. Thai

Articles

Real Copyright Reform Jessica Litman

Policy Reversal on Reverse Payments: Why Courts Should Not Follow the New DOJ Position on Reverse-Payment Settlements of Pharmaceutical Patent Litigation Henry N. Butler & Jeffrey Paul Jarosch

The Uneasy Case for the Inside Director Lisa M. Fairfax

Judging Myopia in Hindsight: Bivens Actions, National Security Decisions, and the Rule of Law Peter Margulies

Tort Liability and the Original Meaning of the Freedom of Speech, Press, and Petition Eugene Volokh

Essay

Automobile Bankruptcies, Retiree Benefits, and the Futility of Springing Priorities in Chapter 11 Reorganizations Daniel Keating

Notes

Out-of-State Civil Unions in Iowa After Varnum v. Brien: Why the State of Iowa Should Recognize Civil Unions as Marriages Drew A. Cumings-Peterson

Al-Kidd v. Ashcroft: Clearly Established Confusion James E. Mosimann

Sexting: How the State Can Prevent a Moment of Indiscretion from Leading to a Lifetime of Unintended Consequences [...]]]>

Articles

Real Copyright Reform
Jessica Litman

Policy Reversal on Reverse Payments: Why Courts Should Not Follow the New DOJ Position on Reverse-Payment Settlements of Pharmaceutical Patent Litigation
Henry N. Butler & Jeffrey Paul Jarosch

The Uneasy Case for the Inside Director
Lisa M. Fairfax

Judging Myopia in Hindsight: Bivens Actions, National Security Decisions, and the Rule of Law
Peter Margulies

Tort Liability and the Original Meaning of the Freedom of Speech, Press, and Petition
Eugene Volokh

Essay

Automobile Bankruptcies, Retiree Benefits, and the Futility of Springing Priorities in Chapter 11 Reorganizations
Daniel Keating

Notes

Out-of-State Civil Unions in Iowa After Varnum v. Brien: Why the State of Iowa Should Recognize Civil Unions as Marriages
Drew A. Cumings-Peterson

Al-Kidd v. Ashcroft: Clearly Established Confusion
James E. Mosimann

Sexting: How the State Can Prevent a Moment of Indiscretion from Leading to a Lifetime of Unintended Consequences for Minors and Young Adults
Elizabeth M. Ryan

The FLSA Antiretaliation Provision: Defining the Outer Contours of What Constitutes an Employee Complaint
Erin M. Snider

ARTICLES Investing In Democracy? Political Process And International Investment Law David Schneiderman

Is Systemic Risk Relevant To Securities Regulation? Anita I. Anand

FOCUS: THE RESURGENCE OF PHILOSOPHICAL LEGAL ETHICS If Philosophical Legal Ethics Is The Answer, What Is The Question? Alice Woolley

Three Issues In Legal Ethics Daniel Markovits

Methodology And Perspective In The Theory Of Lawyers’ Ethics: A Response To Professors Woolley And Markovits W. Bradley Wendel

Philosophical Legal Ethics And Personal Integrity Tim Dare

REVIEW ARTICLE Language And Judgment’s Reach: Reflecting On Limits On Rights Robert Leckey

BOOK REVIEW Sexual Citizens: The Legal and Cultural Regulation of Sex and Belonging by Brenda Cossman, reviewed by Rebecca Johnson

Current issue will also be available through Westlaw, LexisNexis/Quicklaw, Scholars Portal and Project Muse.

Articles

 Burying the “Continuing Body” Theory of the Senate Aaron-Andrew P. Bruhl

 Protecting Patients with Passports: Medical Tourism and the Patient-Protective Argument I. Glenn Cohen

 Do Partisan Elections of Judges Produce Unequal Justice When Courts Review Employment Arbitrations? Michael H. LeRoy

 Evidence Law as a System of Incentives John Leubsdorf

 Notes

 A New Wave of Paternalistic Tobacco Regulation Robert J. Baehr

 Fair Use Through the Lenz of § 512(c) of the DMCA: A Preemptive Defense to a Premature Remedy? Joseph M. Miller

 Judicial Federalism, Equal Protection, and the Legacy of Racing Association of Central Iowa Brett F. Roberts

That may be true, but here is a somewhat more charitable reading: from the point of view of the submitting authors Law Reviews offer authors a relatively undifferentiated product and thus we gravitate to the main axis of differentiation – law school/journal rank. I say “from the point of [...]]]> Ok that’s actually a rip-off of the gimmicky slogan of “Lending Tree,” but I have been thinking recently (as many do at this time of year) about the law review submission process. In particular, I have been thinking about the expedite element, and why it happens. One answer is that we are all prestige-whores (er..lovers) and that the only thing we value is the rank of the school where the law review is housed.

That may be true, but here is a somewhat more charitable reading: from the point of view of the submitting authors Law Reviews offer authors a relatively undifferentiated product and thus we gravitate to the main axis of differentiation – law school/journal rank. I say “from the point of view of the submitting authors” advisedly, because there are many axes on which law reviews differ. Even in my short time as an academic, the reviews I have worked with have varied significantly as to the quality of substantive comments, the likelihood they would stick on timeline, whether they use track changes to make it easy to review their alterations, etc. The problem is that these are all things I have only discovered AFTER working with them.

This is in some ways similar to health care purchasing by an individual consumer – quality is opaque, and gathering the necessary information would be too costly to do on my own (there is a further problem with health care that even when information is available such as report cards for hospitals created by state agencies, as I discuss here, many patients tend to ignore them and/or privilege word of mouth appraisals). Further, there is an additional inter-temporal problem in that each law review’s board (and thus quality) and policies changes on a regular basis such that information becomes stale quite quickly. Even in an institutional-memory-obsessed journal like the Harvard Law Review with a long tradition, there is a period called “transition” when the 2Ls take the reigns and as a body can change many of the facets of the reviews process, including things like the number of stages of editing, etc.

Is this problem intractable? Yes, and no. Law reviews could advertise and contractually commit themselves to particular types of terms as soon as the submission season starts – for example, issues will come out within one month of issue date, to give one example.  (I put to one side other kinds of differentiation – for example accepting longer articles when other journals do not, since that will change at most to whom one submits, and even then most of us are risk-averse enough to be likely to shorten our papers to fall within the guidelines of the larger number of journals). True, it is very very unlikely that any of us would sue a law review over the failure to meet that term of publication date, but even the promise itself might be enough to satisfy us and set up a more desirable norm. Are there enough of these kinds of terms on which journals could compete that would counterbalance the incentive to merely pick the best ranked journals? I am not sure, it seems plausible it might matter within rough journal peer groups, but I would be curious if others have ideas of what kinds of terms they would like to see law reviews compete or converge on? Indeed perhaps some enterprising law review editors may be reading this very blog…

Articles

Insuring Understanding: The Tested Language Defense Michelle Boardman

Choice of Law Theory and the Metaphysics of the Stand-Alone Trigger Lea Brilmayer & Raechel Anglin

Managing Identity: Buying Into the Brand at Work Marion Crain

Why Should the First Amendment Protect Government Speech When the Government Has Nothing To Say? Steven G. Gey

Notes

Cybernetic-Enhancement Technology and the Future of Disability Law Collin R. Bockman

Equal Education Opportunity and the Pursuit of “Just Schools”: The Des Moines Independent Community School District Rethinks Diversity and the Meaning of “Minority Student” Jacob E. Meusch

Language Legislation in Iowa: Lessons Learned from the Enactment and Application of the Iowa English Language Reaffirmation Act Evan L. Seite

The recent passage of health care reform has sparked contentious debate on the constitutionality of the requirement that individuals purchase a qualifying health insurance plan or be subject to a tax (the “individualized responsibility requirement” or “IRR”). In the latest YLJ Online Essay, Conditional Taxation and the Constitutionality of Health Care Reform, Professor Brian Galle argues that even if the commerce power and Necessary and Proper Clause do not clearly authorize the IRR, it is a straightforward application of Congress’s broad taxation authority. Professor Galle further contends that attacks on the normative desirability of this reading of the taxing power are misguided.

Preferred citation: Brian Galle, Conditional Taxation and the Constitutionality of Health Care Reform, 120 YALE L.J. ONLINE 27 (2010), http://yalelawjournal.org/2010/5/31/galle.html.

The Minnesota Law Review is proud to announce the spring edition of our new online companion journal, Minnesota Law Review Headnotes. In addition to serving as the online archive of the Law Review‘s print articles, available in PDF format, Headnotes also features original, online-only Response articles in which prominent academics respond to the articles the Law Review publishes. Comment fields are available at the end of each Response, and readers are encouraged to provide feedback.

In this issue of Headnotes:

Ralph Hall (University of Minnesota Law School) responds to Richard Epstein’s article, Against Permititis: Why Voluntary Organizations Should Regulate the Use of Cancer Drugs. In Right Question, Wrong Answer, Professor Hall argues that while he agrees with Professor Epstein’s assessment of the problems with the FDA drug approval process, he disagrees with his proposed [...]]]>

The Minnesota Law Review is proud to announce the spring edition of our new online companion journal, Minnesota Law Review Headnotes. In addition to serving as the online archive of the Law Review‘s print articles, available in PDF format, Headnotes also features original, online-only Response articles in which prominent academics respond to the articles the Law Review publishes. Comment fields are available at the end of each Response, and readers are encouraged to provide feedback.

In this issue of Headnotes:

Ralph Hall (University of Minnesota Law School) responds to Richard Epstein’s article, Against Permititis: Why Voluntary Organizations Should Regulate the Use of Cancer Drugs. In Right Question, Wrong Answer, Professor Hall argues that while he agrees with Professor Epstein’s assessment of the problems with the FDA drug approval process, he disagrees with his proposed solution. Professor Hall argues that Professor Epstein’s solution—to reduce the FDA to an advisory/information role after Phase I testing—devalues the mission of the FDA and has already been rejected by the body politic.   Instead, Professor Epstein contends that the solution to problems with the FDA drug approval process is to work to improve and optimize the system, not to eliminate it.

Aaron Perzanowski (Wayne State University Law School) responds to David Fagundes’s article, Property Rhetoric and the Public Domain. In In Defense of Intellectual Property Anxiety, Professor Perzanowski expresses skepticism about two assumptions underlying the argument for embracing property rhetoric to promote the public domain. This argument assumes, first, public recognition of social discourse theory as an account of property and, second, rhetorical advantages of social discourse theory that are comparable to those of more familiar notions of private property. Perzanowski concludes that the simple intuitive appeal of Blackstonian property cautions against styling the struggle for balanced copyright and patent policy as a debate over competing property interests.

Ted Sampsell-Jones (William Mitchell College of Law) replies to Professors Cribari and Judges’s article, Speaking of Silence: A Reply to “Making Defendants Speak“. In On Silence, Professor Sampsell-Jones argues that their theory of the Self-Incrimination Clause, which relies on intuition to determine which practices are necessary to “test the prosecution” in criminal cases, is lacking in both textual support and practical utility. As a result, he concludes that their defense of Griffin v. California is unconvincing.

In the past month, the Northwestern University Law Review Colloquy has published essays relevant to current events and debates.

Professor Zachary Kramer writes in his essay that the U.S. military should not be in the business of regulating sexual status. Rather, the military should focus on regulation of sexual conduct for both hetero- and homosexuals.

Professor John McGinnis discusses a recent major media interest, Artificial Intelligence, and what the best government response to its development should be. He argues that, rather than prohibition or heavy regulation, the government should support the development of so-called “friendly AI,” to both prevent potential threats and develop the many benefits of it.

Several legal scholars, notably Professor Adrian Vermeule, contend that the APA is replete with procedural exceptions, which generate “black holes” [...]]]>

In the past month, the Northwestern University Law Review Colloquy has published essays relevant to current events and debates.

Professor Zachary Kramer writes in his essay that the U.S. military should not be in the business of regulating sexual status. Rather, the military should focus on regulation of sexual conduct for both hetero- and homosexuals.

Professor John McGinnis discusses a recent major media interest, Artificial Intelligence, and what the best government response to its development should be. He argues that, rather than prohibition or heavy regulation, the government should support the development of so-called “friendly AI,” to both prevent potential threats and develop the many benefits of it.

Several legal scholars, notably Professor Adrian Vermeule, contend that the APA is replete with procedural exceptions, which generate “black holes” where federal agencies are free to act outside the constraints of legal order. Unlike Professor Vermeule, Professor Evan Criddle argues that such black holes are not institutional inevitabilities. Rather, administrative law should be reformed to promote a culture of justification, based on the principle that public officials and agencies serve as fiduciaries for the public.

Finally, in Professor Martin Redish’s new book, Wholesale Justice, he provides a thorough analysis of the constitutional implications of the class action mechanism. In his book review, Douglas Smith expands upon these ideas and discusses other ways in which Professor Redish’s theories may be applied in practice or in which the constitutional concerns he identifies may already be recognized.

For more, go to the Colloquy archives page, and remember to check back each week for new content.

Articles

Peacemaking in the Culture War Between Gay Rights and Religious Liberty Jennifer Gerarda Brown

Inventing Tests, Destabilizing Systems Kevin M. Clermont & Stephen C. Yeazell

The Law of Vertical Integration and the Business Firm: 1880–1960 Herbert Hovenkamp

“We, the Paparazzi”: Developing a Privacy Paradigm for Digital Video Jacqueline D. Lipton

Notes

A Duty to Kiss and Tell? Examining the Uncomfortable Relationship Between Negligence and the Transmission of HPV Timothy J. Hasken

Issuing Violations Without Tangible Evidence: Computer Modeling for Clean Water Act Enforcement Sara R. Reichenauer

Drawing the Line: Niswander’s Balance Between Employer Confidentiality Interests and Employee Title VII Anti-Retaliation Rights Nicholas M. Strohmayer

Articles

W(h)ither Economic Substance? Leandra Lederman

Executive Detention, Boumediene, and the New Common Law of Habeas Baher Azmy

Where United Haulers Might Take Us: The Future of the State-Self-Promotion Exception to the Dormant Commerce Clause Rule Dan T. Coenen

Property, Privacy, and the Pursuit of Interconnected Electronic Medical Records Mark A. Hall

Notes

Cultural Pragmatism: A New Approach to the International Movement of Antiquities Matthew R. Hoffman

The Judge’s Order and the Rising Phoenix: The Role Public Interests Should Play in Limiting Author Copyrights in Derivative-Work Markets Christine M. Huggins

Unreasonable Delay at the VA: Why Federal District Courts Should Intervene and Remedy Five-Year Delays in Veterans’ Mental-Health Benefits Appeals Jacob B. Natwick

This issue contains responses to The Inexorable Radicalization of Textualism by Jonathan R. Siegel.

In The Inexorable Radicalization of Textualism, Professor Jonathan Siegel argues that textualism differs fundamentally from intentionalism and purposivism, and that the gap between them gets wider with time. Siegel concludes that textualism inexorably radicalizes itself as textualists gradually realize that their axiom—the statutory text is the law—compels them to reject moderating influences, such as the “absurd results exception,” that accommodationists claim bring interpretive methods together. As a result, Siegel finds that textualism worsens over time, whereas intentionalism and purposivism are better able to improve themselves over time.

In Opportunistic Textualism, Professor Lawrence Solan argues that while Professor Siegel expresses reasonable concern about the [...]]]>

PENNumbra‘s featured works are now available at www.pennumbra.com.

This issue contains responses to The Inexorable Radicalization of Textualism by Jonathan R. Siegel.

In The Inexorable Radicalization of Textualism, Professor Jonathan Siegel argues that textualism differs fundamentally from intentionalism and purposivism, and that the gap between them gets wider with time. Siegel concludes that textualism inexorably radicalizes itself as textualists gradually realize that their axiom—the statutory text is the law—compels them to reject moderating influences, such as the “absurd results exception,” that accommodationists claim bring interpretive methods together. As a result, Siegel finds that textualism worsens over time, whereas intentionalism and purposivism are better able to improve themselves over time.

In Opportunistic Textualism, Professor Lawrence Solan argues that while Professor Siegel expresses reasonable concern about the consequences of carrying textualism to its logical extreme, “it is virtually impossible to be a textualist on the ground.” Because judges are inclined to relax their embrace of formalism in favor of other values, the extreme results that Siegel fears cannot be consistently realized. Solan looks to the example of radical textualism that Siegel offers: a rigid dissent by Judge Bybee from a Ninth Circuit decision correcting a clear statutory drafting error. Solan points out that Judge Bybee has been willing to look to legislative history, intent, and statutory purpose in a variety of other areas, and that even the staunchest textualists speak of legislative intent when resolving ambiguous statutes. Solan closes by acknowledging that formalism, like other canons of construction, has been used opportunistically to reach results driven primarily by ideology. Though he shares Professor Siegel’s concerns about some of the cases discussed in The Inexorable Radicalization of Textualism, he concludes that those results do not represent a radical or inevitable movement toward “law without mind.”

In Is Textualism Doomed?, Professor Ilya Somin counters Professor Siegel’s argument that textualism is ultimately doomed to irrelevance because its “inexorable radicalization . . . will cause it to lose the interpretation wars.” Somin contends that Siegel’s normative critique of textualism and positive prediction about its future are overdrawn. In Part I, Professor Somin shows that adherence to text does not inevitably lead to absurd and extreme results. In Part II, Somin claims that Siegel has understated the importance of textual ambiguity. He argues that when faced with an ambiguous text, resorting to extrinsic evidence of meaning is entirely consistent with textualist premises and may sometimes even be required by them. In Part III, Somin finds that textualism is here to stay, and will not “work itself pure” as Siegel has argued. Somin concludes by reasoning that because federal judges are not as interested in “grand theories of interpretation” and methodological consistency as academics are, they will not take textualism to its logical extreme.

As always, please visit PENNumbra to read previous Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.

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.

January 2010 | Volume 119, Issue 4

On Tuesday, March 23, 2010, The Yale Law Journal Online will join with the Yale Law School Supreme Court Advocacy Clinic to host the concluding segment of “Important Questions of Federal Law: Assessing the Supreme Court’s Case Selection Process.”  The panel will bring together federal judges, members of the legal academia, [...]]]>

January 2010 | Volume 119, Issue 4

On Tuesday, March 23, 2010, The Yale Law Journal Online will join with the Yale Law School Supreme Court Advocacy Clinic to host the concluding segment of “Important Questions of Federal Law: Assessing the Supreme Court’s Case Selection Process.”  The panel will bring together federal judges, members of the legal academia, and practitioners to discuss potential reforms to the Supreme Court’s certiorari process. All events will be held at Yale Law School’s Sterling Law Building in New Haven, CT. Please click here for more information.

IMPORTANT QUESTIONS OF FEDERAL LAW
Yale Law School | New Haven, CT | March 23, 2010

Panel I: The Judge’s Perspective: Is the Court Taking the “Right” Cases?
4:10pm‐5:30pm, Room 129

Moderator: Linda Greenhouse (Yale Law School)
Panelists:
The Honorable José Cabranes (2d Cir.)
Drew Days (Yale Law School)
The Honorable Brett Kavanaugh (D.C. Cir.)
The Honorable Sandra Lynch (1st Cir.)

Panel II: The Practitioners’ Perspective: What Makes An Issue “Important” to the Court?
5:40pm‐6:55pm, Room 127

Moderator: Charles Rothfeld (Mayer Brown LLP and Yale Law School)
Panelists:
John Elwood (Vinson & Elkins LLP)
Orin Kerr (George Washington University Law School)
Patricia Millett (Akin Gump LLP)
Judith Resnik (Yale Law School)

The approach of viewing federal judges in the United States as baseball umpires has gained traction with the recent nomination processes of the Supreme Court, and sparked debate in both legal academia and across the political spectrum. The Yale Law Journal Online is therefore pleased to announce the publication of The Justice as Commissioner: Benching the Judge-Umpire Analogy by Aaron Zelinsky (Yale Law School). Mr. Zelinsky offers a timely assessment and critique of this analogy, as well as alternatives to envisioning the role of the Supreme Court.

Preferred citation: Aaron Zelinsky, The Justice as Commissioner: Benching the Judge-Umpire Analogy, 119 YALE L.J. ONLINE 113 (2010), http://yalelawjournal.org/2010/03/03/zelinsky.html.

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.