This Article sets forth the theory of an enduring, evolving separation of powers, one that checks and balances state power in whatever form that power happens to take. It shows how this constitutional commitment was first renewed and refashioned in the 1930s and 1940s, wherein the construction of a secondary regime of administrative checks and balances triangulated...
Over the past three decades, the Supreme Court has repeatedly insisted that due process requires that absent class members be given an opportunity to opt out of a class action seeking predominantly money damages. The Court’s asserted justification for linking opt-out rights and due process focuses on absent class members’ potential interest in seeking their own...
In 1996, the Supreme Court handed down Whren v. United States, which prohibits inquiry into police officers’ subjective motivations in conducting a search or seizure when there is reasonable suspicion or probable cause on which to base the search. The Whren doctrine has largely restricted the availability of the exclusionary rule and 42 U.S.C. §...
In a copyright infringement dispute, when assessing whether a defendant’s work is substantially similar to, and therefore infringing, a plaintiff’s, a court must first determine which works to compare. A unique issue arises when a defendant has appropriated material from multiple works in a series or collection by a plaintiff. A court must decide whether to examine...
Our understanding of administrative law owes much to Peter L. Strauss, Betts Professor of Law at Columbia Law School. To be asked to offer a few words at this Symposium in his honor is, for me, a privilege beyond measure. In thinking about his contributions and his effect on all of us in the […]
We test the empirical validity of a claim that has been playing a central role in debates on corporate governance—the claim that interventions by activist hedge funds have a detrimental effect on the long-term interests of companies and their shareholders. We subject this claim to a comprehensive empirical investigation, examining a long five-year window following...
I first met Peter Strauss some thirty years ago when Clark Byse invited me to join in editing the casebook that Peter had already joined at the invitation of Walter Gellhorn. Since then we’ve slept in each other’s houses, gone out to innumerable meals together, read drafts of each other’s work, and, along with […]
8 U.S.C. § 1324 prohibits, among other activities, harboring aliens who enter the United States without authorization. In the more than six decades since the law was passed, federal courts’ understandings of what “harboring” means have varied. This Note argues that recent decisions in the Second and Seventh Circuits, both of which narrow the scope of liability...
Peter Strauss’s The Place of Agencies in Government: Separation of Powers and the Fourth Branch reshaped contemporary thinking about the constitutionality of federal administrative government. When the article appeared in 1984, the Reagan Revolution was in full swing. Reagan’s overtly antiregulatory policy stance and his Administration’s advocacy of a highly formalist and originalist style […]
The project of creating a Banking Union is designed to overcome the fatal link between sovereigns and their banks in the Eurozone. As part of this project, political agreement for a common supervision framework and a common resolution scheme has been reached with difficulty. However, the resolution framework is weak, underfunded and exhibits some serious flaws. Further,...