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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1 Response

  1. Jack Weaver says:

    The author of the “Federal Farmer” critiques of the Constitution foretold the thrust of the Second Amendment in 1787, when he listed 15 “unalienable or fundamental rights in the United States.” Among those 15 rights in the United States he included the right to a militia that was “always armed and disciplined, and the usual defence of the country,” but said nothing about a right of individuals to carry arms on their own private missions.