In "A Practical Solution to the Reference Class Problem," Edward K. Cheng usefully 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.  This Essay argues that a simpler area of recent statistics, the theory of feature selection methods, is more relevant.  Part I of this 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.

Regulating immigration requires lawmakers to reach beyond a unilateral "gatekeeping" strategy defined by efforts to stop migration through law enforcement and economic coercion. In their contributions to the policy debate, scholars increasingly have emphasized the importance of addressing labor and illegal migration through bilateral and transnational frameworks—through accords that would recognize the interdependence of the United States and Mexico and engage our neighbor to the south directly through joint efforts to channel migratory flows.

In this Essay, I seek to contribute to this strand of commentary by identifying the existing mechanisms of transnationalism and offering initial suggestions for their development, in the interest of building institutional capacity for meaningful bilateralism. These mechanisms consist of international diplomatic and information-sharing networks, cooperative ventures between administrative officials on both sides of the border, and transnational civil society networks developed to serve the needs of Mexican migrants. The cross-border administrative law space these forms of organization create is occupied not just by international entities, but also by entanglements between the domestic institutions of the United States and Mexico. In assessing these networks, I emphasize that bilateralism should be shaped to promote burden-sharing, or to ensure that both sides of the bilateral relationship reap benefits and bear costs, in rough proportion.

In recent years, an increasing number of scholars and commentators have turned their attention to the criminalization of migration in the United States.  One major effect of this criminalization has been the incorporation of criminal law methodologies into the realm of civil immigration enforcement and adjudication.  Recently, Stephen Legomsky has theorized the asymmetric nature of this incorporation.  As he explains, the "theories, methods, perceptions, and priorities" of criminal law enforcement have been incorporated into immigration proceedings, while the procedural protections of criminal adjudication have been explicitly rejected.  His analysis focuses on how the criminalization of migration is reshaping the realm of civil immigration proceedings.  In contrast, this Essay centralizes and attempts to theorize the criminal prosecutions of migration-related offenses.  Part I of this Essay describes this trend.  Part II of this Essay provides several examples of the use of criminal prosecutions in the migration context in order to explore an undertheorized effect of this trend, namely, that the protective features of criminal investigation and adjudication are melting away at the edges in certain criminal cases involving migration-related offenses.

In "The Correspondence of Contract and Promise," I claim 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, I demonstrate how a "personal sovereignty" account of individual autonomy explains how and why, contrary to existing correspondence theories, promissory responsibility corresponds to the rights and duties recognized by contract.  Personal sovereignty recognizes the fundamental right of individuals not only to choose their system of ends but also to choose how to pursue those ends.  According to this 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.  Although I find this an intuitive understanding of the logic of moral justification, some philosophers have doubted that morality can simply "give moral effect" to attempts to create moral responsibility.  In Part I of this companion piece, I explain the skeptical argument that has been leveled against theories of promissory obligation that posit a normative power to make a promise.  In Part II, I argue that it has no force against the personal sovereignty account I offer.

In Rethinking Free Speech and Civil Liability, Daniel Solove and Neil Richards attempt something truly ambitious.  The authors seek to map coherent boundaries for the First Amendment's vast civil domain.  Their project merits serious attention.  Currently, different rules apply to civil liability for speech depending on whether the liability arises in tort, contract, or property.  Solove and Richards claim that these boundaries are unworkable, under-theorized, and in some cases destined to collide.  They develop a framework for mapping the First Amendment's civil domain that is based upon a distinction regarding the type of power the state exercises in various civil liability contexts.  This response critically examines the choice and meaning of power, and the boundaries that a power-defining approach would draw.

Noah Zatz's article, Managing the Macaw:  Third-Party Harassers, Accommodation, and the Disaggregation of Discriminatory Intent, is a brilliant addition to an important line of scholarship bringing accommodation requirements into the fold of antidiscrimination law.  Using the colorful hypothetical of the harassing macaw first introduced by Judge Easterbrook in Dunn v. Washington County Hospital, Zatz deftly shows that in cases of third-party harassment employers must do more than merely treat their employees equally; they must affirmatively protect against harassment.  In this brief Response I will probe the role of agency principles in employment discrimination law.  The distinction between direct and vicarious employer liability for discrimination has been under-analyzed, and this lack of attention leads Zatz to overstate the applicability of his account—to suggest that it can be used to determine the full extent of an employer's liability for actions by its agents.  In doing so, Zatz puts the future of individual disparate treatment law at risk.  He opens individual disparate treatment law to considerations of employer "notice" and "feasibility" where it has traditionally imposed strict liability.