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.
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.
The Option Element in Contracting
The law of contracts has often treated options quite differently from other contractual transactions; for example, the characterization of a transaction as an option contract calls forth specially required formalities, but on the other hand often has the effect of releasing parties from doctrinal limitations on their contractual freedom, such as the duty to mitigate damages or the rule that holds excessively high liquidated damages void as penalties. Such differential treatment is challenging to explain from a functional viewpoint, in part because all contracts resemble options to the extent they are enforceable in terms of monetary damages, and in part because contracts that are nominally structured as explicit options can be close economic substitutes for contracts that are nominally structured as unconditional.
This Article sets out a theoretical account of the efficient design of option contracts—one that explains how contracting parties should strike the balance among option premium, option life, and exercise price, in order to maximize the expected surplus from their transaction. It shows that the tradeoffs between these various aspects of option contracts can affect the parties incentives to acquire and disclose information, to invest in relation specific investments, and to take efficient precautions against the event of breach. It then goes on to develop an organizing framework for private parties choosing whether and how to structure their contractual arrangements as options, and for policymakers choosing whether or how to regulate such private choices. In short, the appropriate balance between option premium, option life, and exercise price will depend on the relative importance that the one attaches to these various dimensions of incentives.