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Full-Text Articles in Legal History
Cultural Paradigms In Property Institutions, Taisu Zhang
Cultural Paradigms In Property Institutions, Taisu Zhang
Faculty Scholarship
Do “cultural factors” substantively influence the creation and evolution of property institutions? For the past several decades, few legal scholars have answered affirmatively. Those inclined towards a law and economics methodology tend to see property institutions as the outcome of self-interested and utilitarian bargaining, and therefore often question the analytical usefulness of “culture.” The major emerging alternative, a progressive literature that emphasizes the social embeddedness of property institutions and individuals, is theoretically more accommodating of cultural analysis but has done very little of it.
This Article develops a “cultural” theory of how property institutions are created and demonstrates that such …
Early Prerogative And Administrative Power: A Response To Paul Craig, Philip A. Hamburger
Early Prerogative And Administrative Power: A Response To Paul Craig, Philip A. Hamburger
Faculty Scholarship
What does English experience imply about American constitutional law? My book, Is Administrative Law Unlawful?, argues that federal administrative power generally is unconstitutional. In supporting this conclusion, the book observes that eighteenth-century Americans adopted their constitutions not only with their eyes on the future, but also looking over their shoulder at the past – especially the English past. This much should not be controversial. There remain, however, all sorts of questions about how to understand the English history and its relevance for early Americans.
In opposition to my claims about American law, Paul Craig lobs three critiques from across the …
Vermeule Unbound, Philip A. Hamburger
Vermeule Unbound, Philip A. Hamburger
Faculty Scholarship
My book asks Is Administrative Law Unlawful? Adrian Vermeule answers “No.” In support of his position, he claims that my book does not really make arguments from the U.S. Constitution, that it foolishly denounces administrative power for lacking legislative authorization, that it grossly misunderstands this power and the underlying judicial doctrines, and ultimately that I argue “like a child.”
My book actually presents a new conception of administrative power, its history, and its unconstitutionality; as Vermeule has noted elsewhere, it offers a new paradigm. Readers therefore should take seriously the arguments against the book. They also, however, should recognize that …