Contributor, The Volokh Conspiracy

Columbia legal historian Phil Hamburger wrote an erudite, interesting book called “Is Administrative Law Unlawful?” that challenges many of the tropes that have dominated administrative law scholarship for decades. Harvard professor Adrian Vermeule responded with an unusually nasty (and to my mind unpersuasive) review that in essence accused Hamburger of being an extremist know-nothing. Hamburger, who is about as mild-mannered a fellow as one meets in the legal academy, has now responded with a rather sharp response of his own, accusing Vermeule, among other things, of grossly mischaracterizing his arguments.

The response to Hamburger’s book (see also) reminds me of the response to Richard Epstein’s book “Takings” back in the mid-1980s. Both books were written by outsiders to the fields in question, both books were hailed as breakthroughs by conservative and libertarian lawyers, and both books were viciously denounced by establishment figures in the respective fields.

Epstein’s book went on to have great influence; when I was interviewing for judicial clerkships, five of six Reagan-appointed judges I interviewed with asked me what I thought of “Takings” (the exception, ironically, was Clarence Thomas, whom Joe Biden later attacked as a possible fan of “Takings”). Meanwhile, when I asked why my property professor didn’t mention “Takings” in his discussion of the Takings Clause, he responded that “no one takes ‘Takings’ seriously.”

Undeniably, “Takings” has greatly influenced discussion of the eminent domain power. It remains to be seen whether “Is Administrative Law Unlawful?” will be similarly influential.