Category: Law Rev Forum


Sidebar Publishes Response to “A Practical Solution to the Reference Class Problem”

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.


The Yale Law Journal, Vol. 119, Issue 4 & Forthcoming Supreme Court Conference

The Yale Law Journal

January 2010 | Volume 119, Issue 4

Douglas G. Baird & Robert K. Rasmussen
Fourth Amendment Seizures of Computer Data
Orin S. Kerr
American Needle v. NFL: An Opportunity
To Reshape Sports Law

Michael A. McCann
Strategic or Sincere? Analyzing Agency Use of
Guidance Documents

Connor N. Raso
Suspending the Writ at Guantánamo: Take III? 825
Constitutional Avoidance Step Zero 837


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.

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)
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)
John Elwood (Vinson & Elkins LLP)
Orin Kerr (George Washington University Law School)
Patricia Millett (Akin Gump LLP)
Judith Resnik (Yale Law School)


The Yale Law Journal Online: The Justice as Commissioner: Benching the Judge-Umpire Analogy


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),


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.


The Yale Law Journal Online: Richard Lazarus and Sanford Levinson on the Supreme Court’s Certiorari Process


Concluding its series on proposed reforms to the certiorari process, The Yale Law Journal Online is pleased to present pieces by Richard Lazarus of the Georgetown Law Center and Sanford Levinson of the University of Texas Law School.  Lazarus and Levinson approach the issue of the Supreme Court’s docket composition through a variety of perspectives, and shed light on the ongoing debate over whether the declining number of cases before the Court presents a problem for the American judicial system.

The Yale Law Journal Online and the Yale Law School Supreme Court Advocacy Clinic will be a hosting a second conference on the subject on March 23, 2010 at Yale Law School in New Haven, Connecticut.  Further details will be provided shortly.

Preferred Citations:

Richard J. Lazarus, Docket Capture at the High Court, 119 Yale L.J. Online 89 (2009), available at

Sanford Levinson, Assessing the Supreme Court’s Current Caseload: A Question of Law or Politics?, 119 Yale L.J. Online 99 (2010), available at


Iowa Law Review, Volume 95, Issue 1 (November 2009)

Iowa Law Review


Juvenile Justice: The Fourth Option
Christopher Slobogin & Mark R. Fondacaro

Testing Modern Trademark Law’s Theory of Harm
Mark P. McKenna

Ignorance Is Effectively Bliss: Collateral Consequences, Silence, and Misinformation in the Guilty-Plea Process
Jenny Roberts

Formalism and Pragmatism in Ruins (Mapping the Logics of Collapse)
Pierre Schlag


Making Taxes More Certain: Iowa State Legislators’ Guide to Combined Reporting
Lindsay C. McAfee

Rescuecom Corp. v. Google Inc.: A Conscious Analytical Shift
Jessica A.E. McKinney

An Iowa Immigration Raid Leads to Unprecedented Criminal Consequences: Why ICE Should Rethink the Postville Model
Cassie L. Peterson

Clearing the Air: Analyzing the Constitutionality of the Iowa Smokefree Air Act’s Gaming-Floor Exemption
Kevin D. Sherlock


The Yale Law Journal Online: Judge J. Harvie Wilkinson’s “If It Ain’t Broke . . .”


The Yale Law Journal Online is pleased to present its last publication of 2009.  The Hon. J. Harvie Wilkinson III addresses the recent calls to reform the Supreme Court’s certiorari process in this Essay, which cautions against reforms that may cause significant collateral damage to the American judicial system.  Judge Wilkinson addresses the recent contraction of the Supreme Court’s docket, challenging the notion that a smaller docket is cause for alarm.  He also challenges a number of the proposals on the table, invoking a historical perspective to argue against tampering with the fundamental structure and role of the Court.  These arguments continue Judge Wilkinson’s previous remarks on the subject at the Yale Law School-sponsored conference, “Important Questions of Federal Law.”

Preferred Citation: J. Harvie Wilkinson III, If It Ain’t Broke . . ., 119 YALE L.J. ONLINE 67 (2009), available at


The Yale Law Journal Online: Is It Important To Be Important?: Evaluating the Supreme Court’s Case-Selection Process


On September 19, 2009, Frederick Schauer discussed the state of the Supreme Court’s certiorari process at a conference sponsored by The Yale Law Journal Online and the Yale Law School Supreme Court Advocacy Clinic.  Professor Schauer’s Essay on the topic, evaluating the dwindling caseload of the Court, the potential for an informational disadvantage on the part of the Justices themselves, and means by which a solution may be found, is now available on YLJ Online.


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

Sidebar Logo

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.


PENNumbra publishes responses to The River Runs Dry: When Title VI Trumps State Anti–Affirmative Action Laws


PENNumbra‘s featured works are now available at

This issue contains responses to The River Runs Dry:  When Title VI Trumps State Anti–Affirmative Action Laws by Kimberly West-Faulcon.

In The River Runs Dry:  When Title VI Trumps State Anti–Affirmative Action Laws, Professor Kimberly West-Faulcon considers whether universities that completely abolish affirmative action to comply with state anti–affirmative action initiatives may actually be breaking the law with respect to Title VI. Using statistical tests for identifying Title VI disparate impact, she analyzes selective California and Washington public university admissions cycles after the enactment of anti–affirmative action laws and finds racial disparities in admissions to affirmative action–less universities of sufficient magnitude that, if unjustified, could establish that an institution has a compelling interest in considering race to comply with federal antidiscrimination law. Based on this analysis, she concludes that state anti–affirmative action laws may permit the consideration of race if undertaken to remedy federal “racial effect discrimination.”

In Do We Care Enough About Racial Inequality? Reflections on The River Runs Dry, Professor Guy-Uriel Charles asserts that while West-Faulcon has provided an apt legal tool to address racial inequality in education, the problem is not a lack of legal tools but the failure of the legal system to recognize the dignity of people of color in constitutional analysis. Charles argues that legal academics need to make not just legal arguments but a renewed case why we ought to care about racial inequality.

In Doctrinal Dilemma, Professor Girardeau Spann describes West-Faulcon’s argument as both analytically sound and enticingly clever but demonstrates that doctrinal arguments can likewise be developed by socially powerful opponents that are cogent enough to evade West-Faulcon’s conclusions. Consequently, Spann argues that legal scholars seeking to promote racial justice confront a serious dilemma: continue to make doctrinal arguments and reinforce the legitimacy of a social system that uses law as a tool for the continued oppression of racial minorities; or stop participating and risk losing those sporadic concession that even an oppressive social system must occasionally make to prevent bottled-up frustrations from ripening into serious threats of destabilizing change.

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.