Doctrine

About: Doctrine is a research topic. Over the lifetime, 21901 publications have been published within this topic receiving 204282 citations.

Making Sense of Fair Use

Abstract: Many criticize fair use doctrine as hopelessly unpredictable and indeterminate. Yet in recent empirical studies, leading scholars have found some order in fair use case law where others have seen only chaos. Building upon these studies and new empirical research, this Article examines fair use case law through the lens of the doctrine’s chronological development and concludes that in fundamental ways fair use is a different doctrine today than it was ten or twenty years ago. Specifically, the Article traces the rise to prominence of the transformative use paradigm, as adopted by the Supreme Court in Campbell v. Acuff-Rose, over the market-centered paradigm of Harper & Row v. The Nation and its progeny. The Article presents data showing that since 2005 the transformative use paradigm has come overwhelmingly to dominate fair use doctrine, bringing to fruition a shift towards the transformative use doctrine that began a decade earlier. The Article also finds a dramatic increase in defendant win rates on fair use that correlates with the courts’ embrace of the transformative use doctrine. In light of these developments, adding an historical dimension to a study of fair use case law helps to make sense of what might otherwise appear to be a disconnected series of ad hoc, case-by-case judgments and explains why current rulings might seem to contradict those regarding like cases issued when the market-centered paradigm still reigned supreme.

The Doctrine of Intertemporal Law

Abstract: After the break-up of western Christendom following the Treaty of Westphalia of 1648, a number of historical changes took place in customary international law. One of the most important changes, if not the most important, was the emergence of the nation-state and the political philosophy to which it gave rise, that is to say, the theory of political sovereignty as the cornerstone of the rights and duties of the various states that came into existence. The political sovereignty of states resulted in the gradual replacement of the old international relations within Christendom, which were based upon a theocratic system of law, by a wider legal system that later embraced nations outside Christendom and engendered a universalization of international relations and, therefore, of international law.

Three Cheers for Double Effect

Abstract: The doctrine of double effect, together with other moral principles that appeal to the intentions of moral agents, has come under attack from many directions in recent years, as have a variety of rationales that have been given in favor of it. In this paper, our aim is to develop, defend, and provide a new theoretical rationale for a secular version of the doctrine. Following Quinn (1989), we distinguish between Harmful Direct Agency and Harmful Indirect Agency. We propose the following version of the doctrine: that in cases in which harm must come to some in order to achieve a good (and is the least costly of possible harms necessary), the agent foresees the harm, and all other things are equal, a stronger case is needed to justify Harmful Direct Agency than to justify Harmful Indirect Agency. We distinguish between two Kantian rationales that might be given for the doctrine, a “dependent right” rationale, defended by Quinn, and an “independent right” rationale, which we defend. We argue that the doctrine and the “independent right” rationale for it are not vulnerable to counterexamples or counterproposals, and conclude by drawing implications for the larger debate over whether agents' intentions are in any way relevant to permissibility and obligation.

Whose Democracy?: Nationalism, Religion, and the Doctrine of Collective Rights in Post-1989 Eastern Europe

Abstract: Chapter 1 Introduction: The Holy Trinity: Rights, Legitimacy, Political Succession Chapter 2 Back to the Future in Eastern Europe Chapter 3 Eastern Europe's Painful Transition Chapter 4 The New Ethnarchy and Theories of Rights Chapter 5 Theocratic Impulses in Poland Chapter 6 The Struggle for Collective Rights in Slovakia Chapter 7 The Albanians of Kosovo Chapter 8 Conclusion: Collective Rights in the Dialectic of History

Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law

Abstract: This article considers a novel and potentially controversial issue: whether non-state armed groups can, do and should play a role in the creation of international humanitarian law applicable in non-international armed conflicts. International law was traditionally understood as the law created by, and binding upon, states and states alone. It is now broadly accepted that international law regulates the rights and obligations of many non-state actors as well as those of states. Yet any corresponding suggestion that non-state actors could or should play a role in international law-making remains highly contentious. In analyzing the potential role that such actors could play in law creation, we reject the traditional state/non-state distinction underlying the doctrine of sources in favor of a tripartite framework of states, state empowered bodies (such as international courts and international governmental organizations), and non-state actors (such as individuals, businesses, NGOs and armed groups). Focusing on the last category, we explore various theories for justifying some or all non-state actors playing a role in international law-making. In particular, we assess the merits of giving armed groups a role in the creation of international humanitarian law applicable in non-international armed conflicts. Drawing on a wide range of rarely discussed practice, we demonstrate that armed groups already participate in law-making in a number of circumstances. Building on these developments, we contend that it is possible to move away from the traditional statist approach to sources, which denies armed groups any role in law-making, without moving to the extreme position of giving such groups complete control over their obligations or equal law-making powers with states. Accordingly, we put forward a theory of hybrid sources under which armed groups could be permitted to recognize existing international obligations or undertake new ones, without raising concerns about placing armed groups and states on a par or downgrading international legal standards.