In 1970, Congress enacted the Fair Credit Reporting Act (FCRA) to address concerns that inadequate safeguards existed to protect consumers in their interactions with credit reporting agencies. Government regulation of credit reporting is critical because the structure of the credit reporting industry does not adequately incentivize credit reporting agencies to maintain accuracy in consumers’ credit reports. Since the enactment of the FCRA, the...
Vol. 115
This Essay provides a new framework for criticizing originalism or its alternatives—the framework of positive law.
Existing debates are either conceptual or normative: They focus either on the nature of interpretation and authority, or on originalism’s ability to serve other values, like predictability, democracy, or general welfare. Both sets of debates are stalled. Instead, we ought to ask: Is originalism our law? If not, what...
International comity is one of the principal foundations of U.S. foreign relations law. The doctrines of American law that mediate the relationship between the U.S. legal system and those of other nations are nearly all manifestations of international comity—from the conflict of laws to the presumption against extraterritoriality; from the recognition of foreign judgments to the doctrines limiting adjudicative jurisdiction in international cases;...
Response to: Jon D. Michaels, An Enduring, Evolving Separation of Powers, 115 Colum. L. Rev. 515 (2015).
Constitutional standing doctrine requires that a private party seeking to defend the validity of a state statute must possess a “particularized” interest in the statute’s validity. When California officials refused to defend the constitutionality of Proposition 8, no one, not even the initiative’s official ballot sponsors, could demonstrate standing in order...
Peter L. Strauss, Betts Professor of Law Versions of the following Essays were presented at a Symposium in Honor of Peter L. Strauss on April 24, 2015. Professor Strauss is the Betts Professor of Law at Columbia Law School, where he has been a member of the faculty since 1971. In addition to his duties on the faculty, Professor Strauss has contributed greatly […]
Political polarization has become a major focus in contemporary discussions on congressional activity and governance. The tone of these discussions has grown increasingly grim, as many political scientists argue that a constitutional system of divided and shared powers hardens current levels of partisan warfare into legislative gridlock. Proposals for reform abound. Scholars and political commentators have called for modifications to the electoral...
Administrative agencies are strikingly absent from leading accounts of contemporary polarization. To the extent they appear, it is largely as acted-upon entities that bear the fallout from the congressional–presidential confrontations that polarization fuels, or as the tools of presidential unilateralism. This failure to incorporate administrative agencies into polarization accounts is a major omission. Agencies possess broad grants of preexisting...
The Schoolhouse Rock! cartoon version of the conventional legislative process is dead, if it was ever an accurate description in the first place. Major policy today is often the product of “unorthodox lawmaking” and “unorthodox rulemaking”—deviations from traditional process marked by frequent use of omnibus bills and multiple agency implementation; emergency statutes and regulations issued without prior comment; outsourcing...
The Supreme Court’s decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. continues to obsess academics and courts alike. Despite all the attention, however, the “Chevron revolution” never quite happens. This decision, though seen as transformatively important, is honored in the breach, in constant danger of being abandoned, and the subject of perpetual confusion and uncertainty. This Essay seeks both...