LAW, NORMS & INFORMAL ORDER eJOURNAL
"An Idea of Authorship: Orson Welles, The War of the Worlds Copyright, and Why We Should Recognize Idea-Contributors as Joint Authors"
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 canâ€™t be copyrighted. â€śAn Idea of Authorshipâ€? challenges this premise â€” that ideas, no matter how significant, cannot qualify for joint authorship in collaborative works â€” 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 societyâ€™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 societyâ€™s most creative minds and ultimately better foster the free flow of ideas essential to the constitutional goal of promoting the â€śProgress of Science and useful Arts.â€?
"Between Regulatory and Autonomy-Based Private Law"
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 Projectâ€™s conception of EU private law.
I embrace the ERPL Projectâ€™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 â€“ as opposed to our interactions as patients of the welfare state or as citizens of a democracy â€“ 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"
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 (1933â€“1940), but its deep roots are to be found in his Pure Theory of Law, centred on the neoâ€?Kantian notion of â€śsystem.â€? 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 â€śGreat Spaces,â€? 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"
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 lawâ€”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"
Ratio Juris, Vol. 28, Issue 4, pp. 452-469, 2015
CHRISTOPH HANISCH, University of Vienna
An influential strand in recent actionâ€?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 selfâ€?constituting action and identityâ€?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' selfâ€?conceptions qua agents. More specifically, this argumentative strategy allows a reassessment of Fuller's â€śinternal morality of law.â€? 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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Law, Norms & Informal Order eJournal
LISA E. BERNSTEIN
Wilson-Dickinson Professor of Law, University of Chicago Law School
JOHN BRADFORD BRAITHWAITE
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)
ROBERT C. ELLICKSON
Walter E. Meyer Professor of Property and Urban Law, Yale Law School
SALLY ENGLE MERRY
Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology
DAN M. KAHAN
Elizabeth K. Dollard Professor of Law & Professor of Psychology, Yale University - Law School, Harvard University - Edmond J. Safra Center for Ethics
PAUL G. MAHONEY
Dean, University of Virginia School of Law
PHILIP N. PETTIT
L.S. Rockefeller University Professor of Politics and Human Values, Princeton University - Department of Political Science
ERIC A. POSNER
Kirkland and Ellis Professor of Law, University of Chicago - Law School
ERIC BENNETT RASMUSEN
Dan and Catherine M. Dalton Professor, Indiana University - Kelley School of Business - Department of Business Economics & Public Policy
CHRIS WILLIAM SANCHIRICO
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)
THOMAS S. ULEN
Swanlund Chair, Director, Illinois Program in Law and Economics, University of Illinois College of Law
JAMES Q. WHITMAN
Ford Foundation Professor of Comparative and Foreign Law, Yale Law School