The paper offers a rights-based, Kantian interpretation of the idea/expression dichotomy in the law of copyright. It demonstrates that the idea/expression dichotomy normatively structures the relation between the parties to a copyright action in terms of their equal rights to authorship. To the extent that the defendant has not copied the plaintiff’s expression but has instead expressed an idea anew, the defendant has exercised her own authorship. The limits of the plaintiff’s right (i.e. the law’s refusal to copyright ideas) are therefore the contours of a public domain that, as a matter of equality, the plaintiff himself must be held to recognize. The public domain is not externally imposed upon but internally constitutive of authorial right. Thus the paper shows that a Kantian understanding of the fundamentals of copyright questions the perceived opposition between authorial right and public domain that informs much of contemporary copyright discourse. In so doing, the paper establishes the largely neglected possibility of a rights-based defense of the public domain.

Legal systems such as those in the United States and Canada, which include fundamental moral rights or provisions in their constitutions, present an interesting and difficult problem for legal positivists. Are such moral standards to count among the existence or validity conditions of laws in those systems, or are they better understood as fundamental objectives or justification conditions which laws may or may not achieve or respect in practice? The first option, known as inclusive legal positivism, expands the traditional positivist separation thesis to mean that although there is no necessary connection between law and morality in general, it is possible that in some systems it is a necessary truth that laws reproduce or satisfy certain demands of morality. The second option, known as exclusive legal positivism, denies this possibility, and maintains instead that it is never a necessary condition that laws reproduce or satisfy certain demands of morality, even if such demands are constitutionally recognized. On the exclusive account, in the context of constitutional states such as the U.S. and Canada, the separation thesis is expanded to mean that there is no necessary connection between the existence and content of laws and the demands of political morality typically included in constitutions. In this paper I defend exclusive positivism and argue that it best follows from traditional positivist commitments and avoids what I take to be a critical problem with inclusive positivism. Further, I argue that the concepts, distinctions, and arguments deployed in the internal positivist debate are also of value in the wider debate between H.L.A. Hart and Ronald Dworkin.

Fundamental legal conceptions are considered in relation to the analytical concerns of Hohfeld and Bentham, and also in relation to the normative concerns of constitutional and common law protection of rights and liberties. The use of a square of opposition to expound fundamental conceptions is rejected in favour of “a triangle of possibilities”. It is argued that using this device helps to provide a clearer understanding of which conceptions may appropriately be recognised as analytically fundamental, and in turn avoids confusion over the normative treatment of practical situations that may arise through the designation of legal rights and liberties as “fundamental”. In particular, the nature of legal liberties, and the priority accorded to legal rights, are both questioned.

This article is a jurisprudential analysis of the idea of a ‘living Constitution’, as a common feature of the constitutional practice in democratic countries. The main argument of the article is that constitutional interpretation encompasses, rather than excludes the judicial power to develop and change the content of constitutional guarantees. The metaphor of the ‘living Constitution’ is appropriate to the nature of constitutional adjudication because it suggests gradual, incremental change on a case-by-case basis. While it is stressed that courts can and should be creative, this judicial creativity is subject to significant legal and practical constraints.

This Article responds to one challenge to the aspiration to incorporate distributive-egalitarian sensitivity into tort law. Arguably, any attempt to effect redistribution by means of tort law is bound to be random and, hence, unjust. There are two facets to the randomness charge: partiality of the participants and crudeness of the distributive result. I argue that the randomness charge, in both its aspects, does not provide a convincing reason to oppose infusing tort law with distributive-egalitarian sensitivity. The charge of randomness is based on two factual assumptions and one normative claim: namely, that existing tort law has no significant redistributive effect; that redistribution through tort law is especially susceptible to the charge of randomness; and that random progressive redistribution is less fair than the status quo distribution. In this Article, I challenge all three claims. I first argue that existing tort law has inevitable distributive consequences and that these consequences are predominantly regressive. I then raise four challenges to the assumption that distribution through tort law is partial, arguing that either such distribution is not partial at all or that it is no more partial than the distribution produced by alternative mechanisms: “localized distributive justice”; “participation through insurance”; “the complement thesis”; and “no comparative randomness.” Next, I develop a methodology for comparing the fairness of the post-tort litigation redistribution with that of the status quo distribution. This methodology is based on the respective proximity of these distributions to the reference point of society’s ideal distributive scheme. Applying this methodology, I argue that partial progressive redistribution is fairer than the status quo distribution. Regarding the problem of partiality of participants, I maintain that any injustice that arises from treating differently members of the same group is overridden by the more egalitarian distribution achieved between the different groups, namely, that the inter-group justice outweighs the intra-group injustice. With respect to the problem of the crudeness of the distributive result, I posit that adopting a guideline for redistribution that is “pro-disadvantaged” rather than “anti-well-to-do” ensures the superiority of the partial progressive redistribution relative to the status quo. Furthermore, even under a more radical “anti-well-to-do” benchmark for redistribution, that superiority might still be maintained. Finally, I apply my three claims to the context of gender inequality and lost earnings. I argue that the theoretical framework developed in this Article provides support for gender-neutral damages awards for lost earnings.

A critical analysis of theories of commercial impossibility and frustration of purpose is best undertaken in conjunction with a theoretical analysis of contract in general. Contracts function as a means of transferring social benefit, which can be subcategorised into subjective and objective benefit. Contracts also regulate the transfer or risk, which is inherent in property and hence any contractual relationship. In the light of the transfer of subjective and objective benefit and risk, contracts can be shown to be by definition ex ante Pareto superior for both parties. Frustration of purpose or commercial impossibility is pleaded where the ex post overall benefit differs greatly from the ex ante expected value. This difference results from the manifestation of a risk which one party bears under the terms of the original contractual risk/benefit equilibrium. Considering the various subjective and objective risks and benefits involved in the contract, it is possible to classify frustrating eventualities under eight heads. In at least six cases the importance of the principle of security of exchange clearly precludes the operation of frustration. One of the remaining cases corresponds with the controversial Krell v Henry; there appears to be a temptation to regard frustration as the most socially utilitarian solution. Given however the dynamics of contractual risk and benefit, allowing frustration there would be unworkable because it would entail placing a subjective risk burden on the party which is in a worse position to evaluate it. There should be no place in the law for a doctrine of frustration of contract on the grounds of commercial impossibility orchanged circumstances.

This discussion is a critique of Professor Randy E. Barnett's solution to the problem of filling in gaps in incomplete contracts. The articles discussed are “The Sound of Silence: Default Rules and Contractual Consent” (1992) and “Rational Bargaining Theory and Contract: Default Rules, Hypothetical Consent, the Duty to Disclose, and Fraud” (1992).