"An Idea of Authorship: Orson Welles, The War of the Worlds Copyright, and Why We Should Recognize Idea-Contributors as Joint Authors" Free Download
Case Western Reserve Law Review, Forthcoming

TIMOTHY JOHN MCFARLIN, Elon University School of Law, Washington University in Saint Louis

Did Orson Welles co-author the infamous War of the Worlds broadcast? The Ninth Circuit Court of Appeals has told us no, primarily because he only contributed the idea behind the broadcast, and ideas alone can’t be copyrighted. “An Idea of Authorship� challenges this premise — that ideas, no matter how significant, cannot qualify for joint authorship in collaborative works — and argues that we as a society should, under certain circumstances, recognize idea-contributors like Welles as joint authors. We should do so to further our society’s interest in encouraging future creations, as well as out of a sense of equity and fairness to idea-contributors, acknowledging the value of ideas to creative work. Recognizing idea-contributors as joint authors would increase the contractual bargaining power of many of our society’s most creative minds and ultimately better foster the free flow of ideas essential to the constitutional goal of promoting the “Progress of Science and useful Arts.�

"Between Regulatory and Autonomy-Based Private Law" Free Download

HANOCH DAGAN, Tel Aviv University - Buchmann Faculty of Law

The European Regulatory Private Law (ERPL) Project offers a provocative and exciting perspective on private law, which upsets conventional wisdoms and challenges us to rethink some of the most fundamental premises of our understanding of private law. This Essay addresses three core pillars of the ERPL Project: its reliance on the notion of regulated autonomy, its endorsement of access justice, and its critique of the public/private distinction. The Essay exposes some ambiguity in each of these pillars and offers some friendly refinements to the Project’s conception of EU private law.

I embrace the ERPL Project’s critique of the traditional understanding of private law as the bastion of independence and of formal equality; and yet I argue against erasing the public/private distinction, and with it, the idea of private law. As the law of our interpersonal relationships as free and equal persons – as opposed to our interactions as patients of the welfare state or as citizens of a democracy – private law can offer a distinctive and valuable source of normativity, which is particularly important in our transnational private relationships where there is no common loyalty to a public (state) actor. Since the conventional, private law libertarian, conception of the laws of property, contracts, torts, and unjust enrichment cannot plausibly play this role, it should be supplanted by its liberal counterpart, which is founded on the commitment to individual autonomy as self-determination (rather than independence) and thus to substantive (not formal) equality.

The two other interventions of this Essay follow from this main point. Thus, I encourage the ERPL Project to unpack its notion of regulated autonomy, which currently conflates two different features of the term. The prescription of extending autonomy by, for example, non-discrimination rules that ensure inclusion, is a straightforward implication of the underlying normative commitments of private law, properly understood. But the interpretation of regulated autonomy as commandeering individual interactions to collective purposes is quite different: while in principle, a liberal private law, which must be attuned to these collective obligations, can accommodate such regulatory purposes, it should do so cautiously given their possible ramifications on both individuals and their private relationships.

Similarly, this Essay offers an autonomy-based foundation to the notion of access justice, which the Project identifies as the underlying theme of ERPL. Access justice, to be sure, serves also public, regulatory concerns. But it need not, indeed should not, rely solely on these concerns. Reciprocal respect to our right to autonomy as self-determination (as opposed to the impoverished sense of independence) entails a duty of relational justice, which provides a non-statist foundation for the prescriptions of non-discrimination and accommodation. This means that setting aside access barriers (especially barriers that exclude weaker people) should be interpreted as an implementation of this duty, which perfects private law, rather than undermines its premises.

"Kelsen's Theory on International Law During His Exile in Geneva" Fee Download
Ratio Juris, Vol. 28, Issue 4, pp. 470-485, 2015

MARIO G. LOSANO, Accademia delle Scienze di Torino

Kelsen's monistic theory of international law was shaped during his exile in Geneva (1933–1940), but its deep roots are to be found in his Pure Theory of Law, centred on the neo�Kantian notion of “system.� According to this conception, a legal system can only descend from a single principle. Consequently, Kelsen constructed a monistic theory of law, i.e., a legal system incorporating all norms into a pyramidal structure culminating in a single principle: the fundamental norm. This Kelsenian pyramid must also include international law, considering that if international law were a legal system different from national law (as the dualistic theory assumes), the theoretical construction would need two fundamental norms. This dualism is as incompatible with Kelsen's monistic vision as Schmitt's theory of “Great Spaces,� creating a hierarchical system of international relations. In the Kelsenian pyramid, international law occupies a position superior to national law: The consequences of this assumption are discussed in some documents recently published in German and French.

"Legal Certainty and Correctness" Fee Download
Ratio Juris, Vol. 28, Issue 4, pp. 441-451, 2015

ROBERT ALEXY, University of Kiel - Faculty of Law

What is the relation between legal certainty and correctness? This question poses one of the perpetual problems of the theory and practice of law—and for this reason: The answer turns on the main question in legal philosophy, the question of the concept and the nature of law. Thus, in an initial step, I will briefly look at the concept and the nature of law. In a second step, I will attempt to explain what the concept and the nature of law, thus understood, imply for the relation between legal certainty and correctness. Here three issues will be considered: first, the Radbruch formula as an answer to the problem of extreme injustice; second, the special case thesis, which claims that legal argumentation is a special case of general practical argumentation; and, third, the problem of the judicial development of the law.

"The Legality of Selfâ€?Constitution" Fee Download
Ratio Juris, Vol. 28, Issue 4, pp. 452-469, 2015

CHRISTOPH HANISCH, University of Vienna

An influential strand in recent action�theory employs constitutivist arguments in order to present accounts of individual agency and practical identity (and of the normative requirements that are constitutive of these phenomena). I argue for an extension of this framework into the interpersonal realm, and suggest using it to reassess issues in jurisprudence. A legal system is an instantiation of the solution to the inescapable tasks of self�constituting action and identity�formation in the presence of other agents. Law's validity and normativity can be enlightened when the constitutivist approach considers the external prerequisites of individuals' self�conceptions qua agents. More specifically, this argumentative strategy allows a reassessment of Fuller's “internal morality of law.� Whereas, pace Fuller, morally substantive conclusions cannot be derived from formal criteria of legality, there are unconditional normative requirements that constrain law.


About this eJournal

This eJournal distributes working and accepted paper abstracts concerning the interaction of formal and informal order. Topics include social and group norms, conventions, customs, customary law, folk law, legal pluralism, private organizational rules, civil society, self-enforcing contracts, informal sanctions (such as gossip, shame, and guilt), self-help (including feuds), and the origins of law and legal institutions.

Editor: Richard H. McAdams, University of Chicago


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Advisory Board

Law, Norms & Informal Order eJournal

Wilson-Dickinson Professor of Law, University of Chicago Law School

Australian Research Council Federation Fellow, Australian National University - Regulatory Institutions Network (RegNet), Research School of Social Sciences, Australian National University (ANU) - Regulatory Institutions Network (RegNet)

Walter E. Meyer Professor of Property and Urban Law, Yale Law School

Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology

Elizabeth K. Dollard Professor of Law & Professor of Psychology, Yale University - Law School, Harvard University - Edmond J. Safra Center for Ethics

Dean, University of Virginia School of Law

L.S. Rockefeller University Professor of Politics and Human Values, Princeton University - Department of Political Science

Kirkland and Ellis Professor of Law, University of Chicago - Law School

Dan and Catherine M. Dalton Professor, Indiana University - Kelley School of Business - Department of Business Economics & Public Policy

Samuel A. Blank Professor of Law, Business, and Public Policy, University of Pennsylvania Law School, University of Pennsylvania Wharton School - Business Economics and Public Policy Department

Director, John M. Olin Center for Law, Economics, and Business, Samuel R. Rosenthal Professor of Law and Economics, Harvard Law School, National Bureau of Economic Research (NBER)

Swanlund Chair, Director, Illinois Program in Law and Economics, University of Illinois College of Law

Ford Foundation Professor of Comparative and Foreign Law, Yale Law School