The Article argues that administrative agencies should have a much greater role in defining the scope of private rights of action than is contemplated by current law or most of the existing legal literature. The Article proposes an extension of Chevron doctrine to the question whether federal statutes authorize enforcement suits by private citizens: statutes which do not on their face clearly create or clearly preclude private rights of actions should be read as empowering the responsible administrative agency to make this determination. Accepting this proposal would significantly expand the influence of the executive branch over private enforcement policy, a development supported and defended in the Article.
English Jurisprudence Between Austin and Hart
John Austin and H.L.A. Hart are two of the most renowned figures in English jurisprudence. Austin formulated his version of legal positivism in his lectures at University College London in the early 1830s. Hart began developing a more sophisticated version of positivism around the time he was appointed as Oxford’s Professor of Jurisprudence in the early 1950s. But what happened to English jurisprudence during the many years that separated Austin and Hart? This Article examines the predicament of English jurisprudence during those years. It is shown that although various efforts were made to move English jurisprudence beyond Austin, the subject remained unimaginative and basically moribund. The Article then considers why, at a time when the American law schools were developing new conceptual and theoretical approaches to law, English jurists should have been incapable of jurisprudential innovation. Indifference and even hostility toward jurisprudence on the part of black-letter lawyers, and a general English tendency to denigrate theory and undervalue systematization, have sometimes been put forward as explanations for the failure of jurisprudence to develop as a discipline during the period separating Austin and Hart. It is argued in this Article that, while those explanations should not be dismissed, jurisprudence was slow to develop because law barely existed as an academic discipline in England during this period, and because, when the English law faculties did begin to emerge, they were generally not suited to the encouragement of serious jurisprudential inquiry.
Lawrence Lessig’s Dystopian Vision
In Free Culture, Stanford Law School Professor Lawrence Lessig has ratcheted up his already heated rhetoric to produce a book that warns that the health of the “ecosystem of creativity” is in “grave peril” due to the efforts of “big cultural monopolists” to reduce the size of the public domain while using new technologies “to control what we can and can’t do with the culture all around us.” Failure to reverse the degradation of this ecosystem, we are assured, could lead to the loss of “freedom to create, freedom to build” and even “freedom to imagine.”
But the curious thing about Free Culture is that, stripped of its impassioned tone, the book portrays not a world of suffocated creativity and cultural impoverishment, but rather one where an unprecedented number of individuals are engaged in creative projects, free to make use of and draw inspiration from a rich trove of cultural resources. To be sure, the picture that emerges is far from a Panglossian “best of all possible worlds.” Real problems exist, and Lessig provides a valuable public service in pointing them out. Absent from Lessig’s analysis, though, is a full acknowledgement that the problems he details are of a piece with ones that Anglo-American law has confronted many times. In particular, the concern that special interests will pressure legislatures to change the contours of property rights so as to restrict competition was well understood by the nation’s founders, and the drawbacks of granting property rights to individuals and institutions who place little or no value on such rights (as may have occurred with the abolition of formal registration requirements to obtain copyrights) have been extensively discussed in the contexts of adverse possession and future interests.
Lessig’s stubborn insistence that the dangers that loom are of unprecedented magnitude leads him to suggest that sweeping overhauls of legal rules and institutions as well as of societal norms are warranted. But a careful reading of Lessig’s own litany points to a different, more complicated conclusion: existing regimes are for the most part healthy, albeit in need of continual monitoring and adjustment.