Philosophy of Law eJournal最新文献_第3页

Fear, Loathing, and the First Amendment: Optimistic Skepticism and the Theory of Free Expression 恐惧、厌恶与第一修正案:乐观怀疑主义与言论自由理论

Philosophy of Law eJournal Pub Date : 2015-01-15 DOI: 10.2139/SSRN.2551482

Martin H. Redish

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引用次数: 2

Dear I.R.S., It Is Time to Enforce the Campaigning Prohibition. Even Against Churches 亲爱的国税局，是时候执行竞选禁令了。甚至反对教会

Philosophy of Law eJournal Pub Date : 2015-01-07 DOI: 10.2139/SSRN.2546453

Samuel D. Brunson

{"title":"Dear I.R.S., It Is Time to Enforce the Campaigning Prohibition. Even Against Churches","authors":"Samuel D. Brunson","doi":"10.2139/SSRN.2546453","DOIUrl":"https://doi.org/10.2139/SSRN.2546453","url":null,"abstract":"In 1954, Congress prohibited tax-exempt public charities, including churches, from endorsing or opposing candidates for office. To the extent a tax-exempt public charity violated this prohibition, it would no longer qualify as tax-exempt, and the I.R.S. was to revoke its exemption.While simple in theory, in practice, the I.R.S. rarely penalizes churches that violate the campaigning prohibition, and virtually never revokes a church’s tax exemption. And, because no taxpayer has standing to challenge the I.R.S.’s inaction, the I.R.S. has no external imperative to revoke the exemptions of churches that do campaign on behalf of or against candidates for office.This argument makes the normative case that, notwithstanding the I.R.S.’s administrative discretion and the inability of taxpayers to challenge its nonenforcement in court, the time has come for the I.R.S. to begin enforcing the campaigning prohibition. Failing to do so harms the Rule of Law, the taxpaying public, and churches themselves. Moreover, the moment is correct for enforcement, as Pulpit Freedom Sunday has virtually eliminated the I.R.S.’s search costs, people are more aware than ever that churches are violating the prohibition, and, in the aftermath of the Supreme Court’s Citizens United decision, the campaigning prohibition may represent the final regulatory barrier between charities and politicking.Even if enforcing the campaigning prohibition is the right thing to do, it would potentially be unpopular, and could provoke a backlash against the I.R.S. After making the normative case for enforcement, then, this Article provides a strategy for enforcement that will allow the I.R.S. to explain what it is doing and why to the general taxpaying public, and will further permit the I.R.S. to avoid the appearance of partisanship. Ultimately, enforcement will allow the I.R.S. to responsibly administer the tax law, will permit the question of the prohibition’s constitutionality to get in front of the judiciary, and will demonstrate dedication to the Rule of Law.","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115729879","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

The Equilibrium of Violence: Hegemon Sovereignty 暴力的平衡:霸权主权

Philosophy of Law eJournal Pub Date : 2014-12-18 DOI: 10.2139/ssrn.2540278

J. Hood

{"title":"The Equilibrium of Violence: Hegemon Sovereignty","authors":"J. Hood","doi":"10.2139/ssrn.2540278","DOIUrl":"https://doi.org/10.2139/ssrn.2540278","url":null,"abstract":"This paper presents a new and intriguing application of law and economics to public international law. Building upon Calabresi’s seminal paper in which he argues that tort law should be regarded as a regulatory regime for the control of negative externalities, I argue that public international law should be regarded as a regulatory regime for the control of externalities of violence. Students of public international law may recognize intuitively that this has been the aim of the legal regime for much of the last century, but this approach to public international law opens that field to a more systematic study whose goal is to find and maintain the acceptable market equilibrium of violence. While arguing that public international law should be regarded as a regulatory regime for the control of externalities of violence, I claim that the legal regime by itself is inadequate to prevent the overproduction of violence. In fact, history teaches us as much. States that would produce unacceptable kinds and quantities of violence must be deterred by superior force. Military force or threat of force serves as a barrier to states’ entry into what can be thought as a market for armed conflict, for violence. In order to maintain a barrier to entry, the force must be hegemonic or have some monopoly on violence. In a sense, it must be the world’s policeman. Only by working in tandem with this hegemonic force can the legal regime ensure that violence does not exceed the bounds of the jus ad bellum and the jus in bello.","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124001977","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

How to Balance Interests: Comparative Legal Aspects on the Limitation of Copyright in International Law 如何平衡利益:国际法中版权限制的比较法学视角

Philosophy of Law eJournal Pub Date : 2014-10-06 DOI: 10.2139/ssrn.2506003

Tatiana Brazhnik

{"title":"How to Balance Interests: Comparative Legal Aspects on the Limitation of Copyright in International Law","authors":"Tatiana Brazhnik","doi":"10.2139/ssrn.2506003","DOIUrl":"https://doi.org/10.2139/ssrn.2506003","url":null,"abstract":"The present article is motivated by the growing interest in the problem of copyright limitation and the comparatively low interest in the problem of legal system connections. Despite the fact that differences in regulation have been recognised for a long period of time, there is still no harmonization in the field. Although recent research works are numerous, it is still not agreed whether common law family or continental law family is better for international use. The issue at hand is influenced by the significant importance of the internet and electronic commerce. Moreover, it addresses the more fundamental question of the division of legal systems. This paper analyses both approaches; shows doctrinal differences in copyright limitation principles; reveals the connection between regulatory frames and existing legal systems; describes the current and potential pitfalls of framework clashes; and identifies modern global legal trends. The findings demonstrate the dependence of recent legal decisions and norms on the philosophical approach applied in a country. In addition, the paper suggests different steps and models of regulatory unification. The theoretical contribution of the work can help the development of new copyright limitation schemes and harmonize international law on this issue","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124929260","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Legal Systems Integrity in Philosophy 哲学中的法律体系完整性

Philosophy of Law eJournal Pub Date : 2014-04-04 DOI: 10.2139/ssrn.2420315

M. Antonov

{"title":"Legal Systems Integrity in Philosophy","authors":"M. Antonov","doi":"10.2139/ssrn.2420315","DOIUrl":"https://doi.org/10.2139/ssrn.2420315","url":null,"abstract":"This paper aims to analyse the philosophical premises on which the idea of unity of law (identity of legal system) is based. In the history of legal philosophy this idea found its main arguments in the presumption of totality of legal regulation. Such totality translated the philosophical tenets of holism according to which law is not limited to the positive-law rules and institutes. Law refers to the supreme values priming over the legal instruments human beings and collectives create for regulation of their mutual behaviour. This argument implies that there are highest values (that of justice, good…) under which all the social relations can be subsumed and which finally give the binding force to positive law. The author argues that this line of thought is based on philosophical objectivism and naturalism, and can easily lead to primacy of the social over the individual. To substantiate the idea of systemacity of law, one can turn to the modern debates about logic of social cohesion and construct a legal system identity as a purely intellectual hypothesis necessary for thinking about law. This integrity can be described as a unity of discourse, or as a unity of societal practices. This reconstruction of integrity of law can be extended by appealing to the basic ideas of normative philosophy of law (from Hart and Kelsen to Raz and Dworkin) and is reconcilable with the conception of normative systems of Bulygin–Alchourron.","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129273219","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

Applying Normative Theories in EU Competition Law: Exploring Article 102 TFEU 规范理论在欧盟竞争法中的应用:对欧盟竞争法第102条的探讨

Philosophy of Law eJournal Pub Date : 2014-03-22 DOI: 10.14324/111.2052-1871.017

Stavros Makris

{"title":"Applying Normative Theories in EU Competition Law: Exploring Article 102 TFEU","authors":"Stavros Makris","doi":"10.14324/111.2052-1871.017","DOIUrl":"https://doi.org/10.14324/111.2052-1871.017","url":null,"abstract":"The present study involves an analysis of the two main normative approaches and intellectual traditions in competition law: the consequentialist and the deontological. The aim is to evaluate their merit in the application of positive law. Especially, this paper examines whether the traditional approaches offer a full account of the underpinning rationale of Article 102 TFEU and whether CJEU jurisprudence reflects a single intellectual tradition. Furthermore, three main legal tests are brought under scrutiny. These legal tests are invoked by the CJEU, in order to determine whether an infringement of Article 102 has occurred. The tests are associated with the abovementioned normative approaches. The scrutiny of the tests seeks to demonstrate the advantages and disadvantages of each normative approach in specific settings. The argument presented by the current analysis is that the two main normative approaches attempt to be holistic and reduce competition law to a single objective or goal. This produces serious shortcomings. Thus, it is preferable to adopt a value pluralistic normative theory aiming at creating a framework, which accommodates both consequentialist and deontological reasoning, when it is objectively justified. In terms of methodology, the argument is unravelled in a top-down method: first, it is presented on an abstract, theoretical level (Part C) and second, the rationale and application of Article 102 are examined so as to assess the general assumptions made in the first part (Parts D and E).","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"11 11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117010084","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 3

The Three-Step-Test Revisited: How to Use the Test’s Flexibility in National Copyright Law 重新审视“三步测试”:如何在国家著作权法中运用测试的灵活性

Philosophy of Law eJournal Pub Date : 2013-11-18 DOI: 10.2139/SSRN.2356619

C. Geiger, D. Gervais, Martin Senftleben

{"title":"The Three-Step-Test Revisited: How to Use the Test’s Flexibility in National Copyright Law","authors":"C. Geiger, D. Gervais, Martin Senftleben","doi":"10.2139/SSRN.2356619","DOIUrl":"https://doi.org/10.2139/SSRN.2356619","url":null,"abstract":"The first version of the three-step test emerged at the 1967 Stockholm Conference for the Revision of the Berne Convention. With the inclusion of versions of the test in the TRIPS Agreement of April 1994, the two WIPO “Internet” treaties of December 1996, the more recent Beijing Treaty on Audiovisual Performances of June 24, 2012, and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (VIP Treaty) of June 27, 2013, the test has taken on the central function of allowing and enabling tailor-made solutions at the national level.The three rather abstract criteria of the test offer room for different interpretations. Various alternative approaches have been developed in the legal literature and applied by national courts, including an understanding of the test’s factors as elements of a global balancing exercise; and a reverse reading of the test starting with the last, most flexible criterion. There are also parallels between factors in Anglo-American fair use and fair dealing legislation and the three step test.The study herein concludes that the three-step test in international copyright law does not preclude flexible national legislation allowing the courts to identify individual use privileges case-by-case and that the three-step test can serve as a source of inspiration for national law makers seeking to institute flexible exceptions and limitations at the domestic level.","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132408849","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 70

Copyright and Responsibility 版权与责任

Philosophy of Law eJournal Pub Date : 2013-10-29 DOI: 10.2139/SSRN.2346689

Haochen Sun

引用次数: 15

'The Word[ ] 'Person'...Includes Corporations': Why the Religious Freedom Restoration Act Protects Both For- and Nonprofit Corporations ‘人’这个词……包括公司:为什么宗教自由恢复法案同时保护营利性和非营利性公司

Philosophy of Law eJournal Pub Date : 2013-08-30 DOI: 10.5072/ULR.V2013I2.1113

Jeremy M. Christiansen

{"title":"'The Word[ ] 'Person'...Includes Corporations': Why the Religious Freedom Restoration Act Protects Both For- and Nonprofit Corporations","authors":"Jeremy M. Christiansen","doi":"10.5072/ULR.V2013I2.1113","DOIUrl":"https://doi.org/10.5072/ULR.V2013I2.1113","url":null,"abstract":"In recent months, lawsuits challenging the Patient Protection and Affordable Care Act’s (“ACA”) requirement that providers of health insurance pay for contraceptives and abortifacient drugs have attracted attention from legal commentators, the news media, and even the Supreme Court. Plaintiffs argue that the contraception mandate violates the Religious Freedom Restoration Act (“RFRA”) by imposing a substantial burden on their religious exercise without meeting strict scrutiny requirements. Early circuit court decisions at the preliminary injunction phase foreshadowed a circuit split on the issue, with some siding with the plaintiffs, and others siding with the government. While this Note was going to print, the Tenth Circuit issued a complicated en banc decision in Hobby Lobby Stores, Inc. v. Sebelius, that reversed a lower court ruling in favor of the government. Although that case signaled a victory for the plaintiffs, the fractured nature of the decision only underscores the likelihood that this issue will ultimately land on the Supreme Court’s doorstep.Hobby Lobby highlights a novel issue — whether for-profit corporations can seek exemptions from the ACA by invoking RFRA. This Note will consider the arguments put forward by the majority in Hobby Lobby, as well as those put forward by the dissenters. Moreover, this Note will address additional textual and contextual factors that courts have failed to consider, ultimately concluding that RFRA draws no distinction between for- and nonprofits. Policy arguments against allowing for-profits protection under RFRA are then considered. In the end, if courts will stay true to RFRA’s text and context, they will be led to two ultimate conclusions. First, for-profits are within RFRA’s auspices. And second, the sacrifice of conscience is not the cost of incorporation in America.","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"126 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131861179","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2

Employees' Rights During Insolvency 破产期间雇员的权利

Philosophy of Law eJournal Pub Date : 2013-08-15 DOI: 10.1108/IJLMA-08-2012-0026

C. Nyombi

引用次数: 5