Dale A. Nance
- Published in print:
- 2021
- Published Online:
- November 2021
- ISBN:
- 9780198859307
- eISBN:
- 9780191891748
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198859307.003.0010
- Subject:
- Law, Philosophy of Law
This chapter analyzes and operationalizes a concept of “weight” as denoting the relative degree to which evidence has been developed on the basis of which to determine disputed claims. This concept ...
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This chapter analyzes and operationalizes a concept of “weight” as denoting the relative degree to which evidence has been developed on the basis of which to determine disputed claims. This concept was coined by John Maynard Keynes and later applied in the context of judicial proof by a number of scholars. The author distinguishes weight from the degree to which evidence favors one side over the other, and then assays the different ways this concept of weight can be operationalized. He identifies the strengths and weaknesses of various theories, and advocates a conception of weight that emphasizes its connection to fundamental policy choices about the importance of accuracy in litigation and, perhaps, the allocation of the risk of error. He argues that a common failure to appreciate the differences between ordinary decision-making under uncertainty and formal adjudication is responsible for confusion about the role of weight in the latter.Less
This chapter analyzes and operationalizes a concept of “weight” as denoting the relative degree to which evidence has been developed on the basis of which to determine disputed claims. This concept was coined by John Maynard Keynes and later applied in the context of judicial proof by a number of scholars. The author distinguishes weight from the degree to which evidence favors one side over the other, and then assays the different ways this concept of weight can be operationalized. He identifies the strengths and weaknesses of various theories, and advocates a conception of weight that emphasizes its connection to fundamental policy choices about the importance of accuracy in litigation and, perhaps, the allocation of the risk of error. He argues that a common failure to appreciate the differences between ordinary decision-making under uncertainty and formal adjudication is responsible for confusion about the role of weight in the latter.
Sabine Jacques
- Published in print:
- 2019
- Published Online:
- April 2019
- ISBN:
- 9780198806936
- eISBN:
- 9780191876790
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198806936.003.0006
- Subject:
- Law, Intellectual Property, IT, and Media Law
This chapter examines the relationship between parody and an author’s moral rights. It first traces the evolution of the concept of moral rights as a means of providing protection not only of the ...
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This chapter examines the relationship between parody and an author’s moral rights. It first traces the evolution of the concept of moral rights as a means of providing protection not only of the authors’ personal interests but also the public interest before discussing the reasons why moral rights might conflict with parodies. It considers two competing theories underlying the protection of authorial interests—the ‘monist’ theory and the ‘dualist’ theory—and their implications for the parody exception. It also explains how jurisdictions differ in the nature and scope of protection afforded to moral rights, noting that the parody exception in ‘copyright’ law does not extend to moral rights. The chapter goes on to explore the author’s paternity and integrity rights as well as their right against false attribution. It shows that, in the case of parodies, an overlap exists between the regimes applied to moral and economic rights.Less
This chapter examines the relationship between parody and an author’s moral rights. It first traces the evolution of the concept of moral rights as a means of providing protection not only of the authors’ personal interests but also the public interest before discussing the reasons why moral rights might conflict with parodies. It considers two competing theories underlying the protection of authorial interests—the ‘monist’ theory and the ‘dualist’ theory—and their implications for the parody exception. It also explains how jurisdictions differ in the nature and scope of protection afforded to moral rights, noting that the parody exception in ‘copyright’ law does not extend to moral rights. The chapter goes on to explore the author’s paternity and integrity rights as well as their right against false attribution. It shows that, in the case of parodies, an overlap exists between the regimes applied to moral and economic rights.
