Publications
The development of the legal system of any contemporary state is the result not only of the political process but also of the way in which advances in legal theory and practice are integrated into that system. Such legal advances tend to provide legally viable recommendations that do not seek to "reinvent the wheel" but can spare a national legal system from commiting errors similar to those observed in other states - to choose soluitons, in other words, that experience has shown to be successful. At issue are not merely specific legal decisiions (concerning, e.g., investments, venture capital funds, etc.), but also the fundamental principles on which a legal system is constructed (priority of human rights, independence over the judiciary, etc.) and the individual elements of which it is composed (trial by jury, separation of powers, social values and the rule of law, etc.).
This paper deals with the question of if and to what extent power-conferring legal rules can be treated as coercive and whether the concept of coercive offers can help to substantiate the coer- civeness of power-conferring in law. In his recent book, The Force of Law, Frederick Schauer claims that power-conferring legal rules are coercive.1 There are several ways to interpret this claim. In this piece I would like to explore one route of interpretation of this interesting and contro- versial claim, i.e., whether one can use a highly controversial concept of "coercive offers" to sub- stantiate this claim. First, the very concept of coercive offers requires clarification. In fact, there are several distinct ways to interpret it and I explore them below. The second point is whether the coer- cive offers concept is applicable in the context of the power-conferring legal rules. Two influential theoretical models of coercive offers are analyzed and critically evaluated and their ramifications for the coerciveness of the power-conferring legal rules are demonstrated. In my view, the only pos- sible route to substantiate the coerciveness claim from the vantage point of coercive offers concept is through the distributive non-neutrality of law narrative.
The basic question of the paper: are power-conferring legal rules coercive and in what sense can we say that power-conferring legal rules coerce? In his recent book, Frederick Schauer answers the first question in the affirmative and proposes an interesting account of how it works. I believe that this claim is unsustainable due to the inconsistencies in the psychological account of coercion ap- plied by Schauer, and his theory’s unrestricted reliance on counterfactuals. In what follows, I try to reconstruct the thesis on the coerciveness of the power-conferring legal rules. The basic insight is that the power-conferring legal rules coerciveness claim is inextricably connected to the unmoral- ized account of coercion, as any moralized theory shifts the problem from coercion to the issue of distributive justice. However, the unmoralized concept of coercion can hardly be coherent in law because it makes coercion a matter of context, dependent on the willpower of each individual, which threatens to eliminate the force of law as such. Even applied on its own terms, the unmoral- ized concept of coercion is unworkable within the context of power-conferring through law because power-conferring legal regimes do not eliminate non-legal alternatives, making it dependent on the will of the legal subjects themselves. Schauer's everlasting contribution lies in his ingenious attempt to substantiate the coercion (of power-conferring rules) claim relying on counterfactuals. A (co- erced) choice has been limited relative to some situation which never occurred but would or should have occurred. In order to limit a set of counterfactuals, making them realistic (preferences and needs are limited only by imagination), one should impose severe limits on them, which makes it impossible to characterize the particular situations described by Schauer as coercive in that sense.
The problems of stable socio-economic development of Russia assume the improvement of governance based on law. The book is devoted to the legal administration in the economy. An analysis of the practices conclusions and recommendations for improving the administrative-legal regulation and control are presented.
In a complex and dynamic process of legal regulation a special role belongs to law enforcement. It is a mechanism to ensure the systemic exposure of law to socio-economic and other processess. Nevertheless, up to now the "situational-sanction" approach prevails in understanding of this phenomenon and it is reflected in the conceptual and social practices. The article attempts to carry out an analysis of law as a public method of anticipatory reflection of reality by means of a systemtic mechanism of legal influence on the processess and phenomena. In this mechanism the interconnected legal and behaviorial, institutional, regulatory, supervisory, analytical and evaluative elements are highlighted. The target orientation of this mechanism contributes to the achievement of outcomes and a new legal condition. The new approach allows for the correlation between aims, regulators and legal outcomes.
This article analyzes the current state of debates on minimum levels of creativity needed for works to be copyrightable, including dominant principles in Russian jurisprudence and judicial practice, principal trends, and contradictions and dysfunctions that arise in the course of implementation of various criteria of copyrightability.
An analysis of the judicial practice of recent years warrants the conclusion that standards of creativity as a criterion of copyrightability have dropped drastically. Today’s standards are similar to those of the former American sweat of the brow doctrine.
But, unlike foreign legal systems that set comparatively low standards of protectability, the Russian judiciary has not yet evolved mechanisms of compensation for risks of monopolization of public domain content.
First of all, there is no practice of granting exclusive rights to a work that is similar to an earlier work but has been created independently. Secondly, the practice of refusing protection to non-unique, standard, generally known, and generally available content is dwindling away. Thirdly, there is a trend to give a large scope of protection to works of low authorship.
As a result, exclusive rights are granted to standard or generally accessible content – content that must belong to the public domain, - which puts unjustified restrictions on the creative activities of other authors. Moreover, it makes their legal status unpredictable as it lays the basis for unintended but penalized copyright violations. This amounts to a classical case of overprotection.
In den letzten Jahren erlebte das russische Gerichtssystem einige deutliche Veränderungen, die nicht ohne Einfluss auf die Rechtsprechung im Bereich des geistigen Eigentums geblieben sind. Die sich bereits früher abzeichnende Tendenz, die Anforderungen an die urheberrechtliche Schutzfähigkeit abzusenken, dürfte sich verstärkt haben. Zwar entspricht diese Tendenz einem globalen Trend, der auch in Deutschland vor allem unter dem Einfluss des europäischen Rechts zu beobachten ist. Allerdings vollzieht sich die Wende im russischen Urheberrecht so radikal, dass dieses mehr und mehr an die Sweat-of-the-brow-Doktrin des Copyright Law erinnert. Der vorliegende Beitrag widmet sich den Problemen, die sich daraus ergeben, und schildert zugleich die neuen Entwicklungen der gerichtlichen Praxis, die sowohl den urheberrechtlichen Schutz im Allgemeinen als auch den Schutz einzelner Werkarten betreffen.
Mit dem Gesetz vom 3. 12. 2011 wurde in Russland die gesetzliche Grundlage für die Gründung von Partnerschaftsgesellschaften geschaffen. In der Praxis hat die Partnerschaftsgesellschaft kaum Bedeutung erlangt. Der nachfolgende Beitrag zeigt jedoch auf, dass die Regelungen für die Partnerschaftsgesellschaft fühlbare Auswirkungen auf die später durchgeführte Reform des allgemeinen Gesellschaftsrechts in Russland gehabt haben.
In 2014 Professor Thomas Schultz published the book “Transnational Legality”, in which he raised a vast number of strikingly interesting issues. It is no exaggeration to say that Schultz has written a marvellous book. In this paper only one of the issues is considered: the thesis of the nonscalability of the concept of law. The paper is dedicated to a critical assessment of the thesis.
This article analyzes the current state of debates on minimum levels of creativity needed for works to be copyrightable, including dominant principles in Russian jurisprudence and judicial practice, principal trends, and contradictions and dysfunctions that arise in the course of implementation of various criteria of copyrightability.
The content of consolidated reports about regulatory impact assessment, formed by drafters of legal acts, is analyzed in the paper. The consolidated reports have been reviewed for compliance with requirements of information provision. Completeness and quality of reports have been investigated. The research provides a solid ground for identifying problems of regulatory impact assessment and proposing methods of solution.
Why should lawyers study the social context of law and are they capable of doing this? These questions may seem absurd. But unfortunately they are not irrelevant or archaic. Unlike American post-realist jurisprudence, with its influential pragmatic emphasis, the continental legal profession is still resistant to attempts to integrate any sort of analysis of the social impact of law.
Moreover, here in Russia the problem has a special relevance. We have a good text of law, often identical to the best texts of the developed societies. But very often this has nothing to do with reality. Even more, it is often applied not strategically, but for purposes that are directly opposite to those for which similar rules are applied in Western democracies. Often these purposes have nothing to do with the rule of law.
In these circumstances, it becomes apparent for the relevance of legal implementation. In the following, some of its implications are developed in the paper.
The subject of this monograph is intellectual property law in Russia. This study focuses on legal mechanisms of protection of intellectual property rights since, in Russia, legislation is the main source of such rights. Though neither judicial practice nor theses propounded in legal literature are formally considered sources of intellectual property law in Russia, they at times seriously affect court rulings, and so much attention is paid to them in this study in dealing with key issues and points of dispute.
All references to legislation in this monograph are valid as of August 2014, but account is taken of amendments to Part Four of the Civil Code that are due to enter into force on 1 October 2014.
