This essay on choice of law (private international law) appears in the second edition of the Blackwell Companion to Philosophy of Law and Legal Theory, edited by Dennis Patterson. It is a revision of an entry on the same topic in the first edition of the book. The essay focuses on the epic battle over the course of the last century between two very different traditions - classical choice of law, articulated most completely by Joseph Beale in the 1930s, and (...) modernist choice of law, which inspired a massive and still controversial revolution in choice of law thinking. The essay isolates eight distinct jurisprudentially significant premises of classicism, including territorialism, a commitment to a regime of rules, and a conception of law and legal rights that I have called “vestedness.” It then discusses the modernist challenges to most, but significantly not all, of those premises. It also emphasize, however, the degree to which the eight pillars of the classical tradition are actually conceptually independent, and could, at least in principle, be mixed and matched in various combinations and in the service of very different account of choice of law enterprise. Finally, the essay turns to other debates, both within the classical and modernist traditions separately and transcending the differences between them. (shrink)

This article examines the social development of Hong Kong's cultural and national identity since its return from the UK to the People's Republic of China nearly six years ago, focusing on the extent to which Hong Kong students are now inculcated in traditional Chinese music and express their devotion to the PRC through singing the national anthem. Hong Kong music teachers experience conflicts concerning their roles as music teachers and as purveyors of values education. These observations raise fundamental questions concerning (...) the sociopolitical function of values education in the music classroom. (shrink)

Powerful emotion and pursuit of self-interest have many times led people to break the law with the belief that they are doing so with sound moral reasons. This study is a comprehensive philosophical and legal analysis of the gray area in which the foundations of law and morality clash. This objective book views these oblique circumstances from two perspectives: that of the person who faces a possible conflict between the claims of morality and law and must choose whether or (...) not to obey the penal code; and that of the people who make and uphold laws and must decide whether to treat someone with a moral claim to disobey differently from ordinary lawbreakers. In examining the extent of the obligations owed by citizens to their government, Greenawalt concentrates on the possible existence of a single source of obligation that reaches all citizens and all laws. He also discusses techniques of amelioration of punishment for conscientious lawbreakers, asking how far legal systems should go to accomodate individuals who break the law for reason of conscience. Drawing from numerous examples of conflicts between law and morality, Greenawalt illustrates in detail the positions and predicaments of potential lawbreakers and lawmakers alike. (shrink)

In this contribution to the Common Knowledge symposium “Fuzzy Studies,” the authors, all of whom work in the field of science, technology, and society, begin from the assumption that, as Bruno Latour has put it, “we have never been modern.” They accept the STS thesis that, while modern practices purport to be entirely rational and coherent, on closer inspection they turn out to be as much noncoherent as coherent. This article poses the question of what forms “noncoherences” take and how (...) they are managed. The basic argument is that there is a range of styles of noncoherence or “modes of syncretism.” In small case studies, the authors identify six such modes or styles, which they term denial, domestication, separation, care, conflict, and collapse. Given that consistency and coherence seem less important now than they were once taken to be — and given that the conditions of possibility for purity are, in any case, in decline — this list and its supporting case studies, while not meant to be definitive, are offered as a way of understanding how practices that do not cohere may still function and fit together admirably. (shrink)

According to E. G. Lorenzen, the international theory of the conflict of laws rests almost wholly on fiction. The discipline of conflict of laws is created by a huge number of national internal laws and quite a large number of international instruments. Concepts used there are interpreted in many ways illustrating the variety of legal solutions and values. Some of the instruments facilitating the correct application of law are unregulated. One of them is qualification, which (...) starts the process of indication and application of the proper law and assists in its completion. (shrink)

Arbitration is the dispute resolution method of choice in international commerce, but it rests on a complex legal foundation. In many international commercial contracts, the parties will choose the law governing any future disputes. However, where the parties do not choose a governing law, the prevailing approach in arbitration is to afford arbitrators broad and largely unfettered discretion to choose the law considered most appropriate or most applicable. The uncertainty resulting from this discretion potentially affects the parties' rights and obligations, (...) the performance of their contract, the presentation of their cases, and negotiations undertaken to settle their disputes.In this text, Dr Benjamin Hayward critically reviews the prevailing approach to the conflict of laws in international commercial arbitration. The text adopts a focused and detail-oriented analysis - being based on a study of more than 130 sets of arbitral laws and rules from around the world, and drawing heavily on arbitral case law. Nevertheless, it remains both practical and accessible, taking as its focus the needs and expectations of commercial parties, who are the ultimate users of international commercial arbitration.This text identifies the difficulties that result from resolving conflicts of laws through broad and unconstrained arbitral discretions. It establishes that a bright-line test would be a preferable way to resolve arbitral conflicts of laws. Specifically, it recommends a modified Art. 4 Rome Convention rule as the ideal basis for law reform in this area of arbitral procedure. (shrink)

"End-Of-Law week drinkS @ ACT Magistrates Court: Friday 20 May 2005." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (198), pp. 24.

Congress's national-security legislation will often require clear and specific congressional authorization before the executive can undertake certain actions. The War Powers Resolution, for example, prohibits any law from authorizing military hostilities unless it "specifically authorizes" them. And the Foreign Intelligence Surveillance Act of 1978 required laws to amend FISA or repeal its "exclusive means" provision before they could authorize warrantless electronic surveillance. But efforts to legislate clear-statement regimes in national-security law have failed to induce compliance. The Clinton Administration inferred (...) congressional "authorization" for the 1999 Kosovo War from an appropriations statute that failed to specifically authorize the conflict. And the Bush Administration inferred congressional "authorization" for the NSA surveillance program from ambiguous language in the post-September 11th Authorization to Use Military Force. In both situations, executive-branch lawyers employed expansive theories of implied repeal and constitutional avoidance to evade the codified clear-statement requirements, and Congress and the courts acquiesced to the President's actions. Recent proposals to strengthen the clear-statement requirements in Congress's national-security framework legislation are unlikely to be effective without institutional mechanisms, such as points of order, that can deter future legislators from enacting vague or ambiguous legislation from which the executive might claim implicit congressional "authorization," and that can induce Congress to confront Presidents that act without specific congressional authorization. Simply enacting more narrow or explicit clear-statement requirements, or adding funding restrictions to Congress's framework legislation, fails to counter the aggressive interpretive doctrines that executives of both political parties have used to concoct congressional "authorization" from vague or ambiguous statutory language. (shrink)

This book, originally released in 1919, contains five lectures given by the author while he was Professor to the Inns of Court during the late 1800s. The lectures were revised to include notes & annotations by A.H.F. LeFroy.

The purpose of this contribution is to analyse climate change litigation in an innovative way, considering it as an example of “privatisation” of international law, and unravelling the “ecological” side of conflict-of-laws climate change litigation. The paper will first explain the concept of privatisation of law as applied to international law and what it means in the context of climate change litigation, before moving to a landmark case, whose appeal is still pending in front of a domestic court (...) in Europe: Milieudefensie et al. v. Royal Dutch Shell plc. The focus of the analysis of the cases will be limited to the use of the conflict-of-laws mechanism present in the Rome II Regulation, namely Article 7. The paper critically assesses the principle of ubiquity included in this provision, by looking at the concept of “event giving rise to the damage” as applied in CO2 reduction claims in the existing legal scholarship and using an underexplored ecofeminist perspective. Inspired by the work “A relational feminist approach to conflict of laws” by Roxana Banu (2017), the paper argues for a relational understanding of the concept of “event” and goes further to consider in an ecofeminist perspective the environment as composed of human, non-human beings and natural objects, and of their relations with each other. The article is meant to be a starting point for further research, which for the first time applies ecofeminist theories to private international law. (shrink)

I address a question in moral metaphysics: How are conflicts between moral obligations possible? I begin by explaining why we cannot give a satisfactory answer to this question simply by positing that such conflicts are conflicts between rules, principles, or reasons. I then develop and defend the “Dispositional Account,” which posits that conflicts between moral obligations are conflicts between the manifestations of obligating dispositions (obligating powers, capacities, etc.), just as conflicts between physical forces are conflicts between the manifestations of (certain) (...) causal dispositions (causal powers, capacities, etc.). This account combines the so-called “moral forces” interpretation of prima facie obligations with a dispositional moral metaphysic according to which the metaphysical grounds of moral obligations are not rules or laws, but rather real, irreducibly dispositional properties (or powers) of moral agents and patients. My principal aims are to offer a theoretically attractive and suitably metaphysical account of conflicts of obligation, and to show that the dispositional moral metaphysic that grounds the Dispositional Account can explain and accommodate plausible normative views that rule- and law-based alternatives cannot, as well as to answer objections that have been pressed against other accounts of moral conflict (especially Ross’s) that appeal to moral dispositions or forces. (shrink)

This collection explores the subject of conflicts of interest. It investigates how to manage conflicts of interest, how they can affect well-meaning professionals, and how they can limit the effectiveness of corporate boards, undermine professional ethics, and corrupt expert opinion. Legal and policy responses are considered, some of which (e.g., disclosure) are shown to backfire and even fail. The results offer a sobering prognosis for professional ethics and for anyone who relies on professionals who have conflicts of interest. The contributors (...) are leading authorities on the subject in the fields of law, medicine, management, public policy, and psychology. The nuances of the problems posedby conflicts of interest will be highlighted for readers in an effort to demonstrate the manyways that structuring incentives can affect decision making and organizations' financial well-being. (shrink)

Conflicts of interest pose special problems for the professions. Even the appearance of a conflict of interest can undermine essential trust between professional and public. This volume is a comprehensive and accessible guide to the ramifications and problems associated with important issue. It contains fifteen new essays by noted scholars and covers topics in law, medicine, journalism, engineering, financial services, and others.

It is in the interest of the totalitarian state that subjects not think for themselves, much less confer about their thinking. Writing under the hostile watch of the Prussian censorship, Immanuel Kant dared to argue the need for open argument, in the university if nowhere else. In this heroic criticism of repression, first published in 1798, he anticipated the crises that endanger the free expression of ideas in the name of national policy. Composed of three sections written at different times, (...) The Conflict of the Faculties dwells on the eternal combat between the "lower" faculty of philosophy, which is answerable only to individual reason, and the faculties of theology, law, and medicine, which get "higher" precedence in the world of affairs and whose teachings and practices are of interest to the government. Kant makes clear, for example, the close alliance between the theological faculty and the government that sanctions its teachings and can resort to force and censorship. All the more vital and precious, then, the faculty of philosophy, which encourages independent thought before action. The first section, "The Conflict of the Philosophy Faculty with the Theology Faculty," is essentially a vindication of the right of the philosophical faculty to freedom of expression. In the other sections the philosopher takes a long and penetrating look at medicine and law, the one preserving the physical "temple" and the other regulating its actions. (shrink)

This paper analyzes ethical issues relating to lawyer mobility.

In lieu of an abstract, here is a brief excerpt of the content:Kennedy Institute of Ethics Journal 15.2 (2005) 199-210 [Access article in PDF] Conflict-of-Interest Policy at the National Institutes of Health: The Pendulum Swings Wildly* Evan G. DeRenzo **This article addresses the National Institutes of Health (NIH) employee conflict-of-interest (COI) policy that went into effect February 2005. It is not, however, merely an account of another poorly crafted government policy that cries out for revision. Instead, it is (...) also a story about one of our nation's most important and prestigious institutions and its struggles to navigate the crosscurrents of scientific aspirations, power politics, public ambivalence toward capitalist economics in the biosciences, and the media's inclination to exaggerate problems and under report complicated facts. It is also a tale of greed, politics, purgatory, and redemption. The dramatic and abrupt change in the NIH COI policy demonstrates the difficulty of balancing the production of cutting-edge science with the demands for transparency resulting from work performed in the public interest on the public tab. It is an unhappy chapter in the life of a government agency that is also a national treasure. And, one hopes, it will be an example of how harmful and ill-conceived law can be revised and amended to advance national health and well-being. What is the New NIH COI Policy? The new NIH COI employee policy, more accurately referred to as the Interim Final Rule (Federal Register 2005), is a sweeping set of prohibitions on activities and holdings to reduce the possibility that NIH employees will have any actual [End Page 199] or apparent conflicts of interest. For the most part, the prohibitions are applied across-the-board—i.e., without distinction to employee category or function. The new policy includes prohibitions on outside activities, stock holdings, and awards. It prohibits all NIH employees from engaging in any compensated or uncompensated employment, including consulting, serving on advisory or other such boards, and compensated teaching, speaking, writing, or editing with certain kinds of entities. The first class of such entities is referred to as substantially affected organizations, defined as biotechnology, pharmaceutical, medical device companies, and others with similar interests. But these are not the only entities included in the prohibitions. Other organizations from which NIH employees now are cut off are hospitals, clinics, and other health care institutions; health, science, or health research-related professional associations and consumer and advocacy groups. Included also are educational institutions and not-for-profit independent research institutes that are, or were, recent NIH funding applicants, grantees, contractors, or cooperative research and development agreement (CRADA) partners. The only exemptions appear to be for health care institutions at which NIH employees provide clinical care and some forms of writing—e.g., an NIH physician who moonlights at her/his local hospital's emergency room or submits a manuscript to a peer-reviewed journal that receives only unrestricted funding from a prohibited entity. Prohibited and/or restricted holdings include stock in biotechnology, pharmaceutical, and medical device companies and others in research, development, or manufacture of medical devices, equipment, preparations, treatments, or products. The prohibitions apply to senior NIH employees; restrictions in the amount of such holdings apply to all remaining employees. Both apply to the spouses and minor children of NIH employees. If an NIH employee wins an award, the monetary allowance in most cases is limited to $200. In sum, the scope of this policy is vast, too vast to be reasonable. Too many employees are restricted in too many ways. Where appropriate restrictions have been placed on senior NIH employees, even these constructive aspects of the policy are overshadowed by the unfairness and destructiveness of other aspects. This policy far exceeds anything that could be considered sound. Fortunately, the policy has a built-in assessment process to begin at the end of the policy's first year of implementation. One can only hope that a fair and open evaluation will be conducted, the results of which surely must result in major revisions to what is now bad regulation. Why the Policy... (shrink)

Our society has long sanctioned, at least tacitly, a degree of conflict of interest in medical practice and clinical research as an unavoidable consequence of the different interests of the physician or clinical investigator, the patient or clinical research subject, third party payers or research sponsors, the government, and society as a whole, to name a few. In the past, resolution of these conflicts has been left to the conscience of the individual physician or clinical investigator and to professional (...) organizations. The public is no longer willing to allow health care providers to wholly govern their own conflicts of interest for several reasons. These include: new forms of health care financing and delivery that provide innovative and lucrative opportunities for physician or insurer enrichment at patient expense; the increased importance of commercial research support as peer-reviewed governmental research support has decreased; evidence that physicians and clinical investigators too frequently resolve conflicts of interest in their own favor; and a general societal mistrust of authority. This volume represents a multidisciplinary effort, drawing from philosophy, medicine, law, economics and public policy to identify and categorize conflicts of interest in medical practice and clinical research, and, where possible, to offer a mechanism for resolving them. Part I addresses conflicts of interest from a theoretical perspective, offering basic concepts and analytical frameworks. The second part discusses two topics prominent in current health care policy debates--self-referral and financial incentives to limit care. Part III examines conflicts of interest generated by pharmaceutical industry involvement in clinical practice and research. The final section deals with conflicts of interest in clinical research in several contexts, including institutional reviews boards, clinical trials, Cooperative Research and Development Agreements between government and private researchers, brokerage of research subjects by Contract Research Organizations, and cost-effectiveness studies. (shrink)

Oocyte donation raises conflicts of interest and commitment for physicians but little attention has been paid to how to reduce these conflicts in practice. Yet the growing popularity of assisted reproduction has increased the stakes of maintaining an adequate oocyte supply and minimizing conflicts. A growing body of professional guidelines, legal challenges to professional self-regulation, and empirical research on the practice of oocyte donation all call for renewed attention to the issue. As empirical findings better inform existing conflicts and their (...) potential harms, we can better attempt to reduce these conflicts. To that end, the article first describes the nature of conflicts in oocyte donation and relevant regulations and professional guidelines. We then describe studies on conflicts at four phases of oocyte donation: recruitment, screening, stimulation, and post-stimulation monitoring. Next we consider three models for conflict reduction in medicine generally: improved professional self-regulation, outright restriction like Stark anti-referral laws, or the use of conflict mediators, like in living organ donation. We ultimately conclude that improved professional self-regulation is a reasonable starting place for oocyte donation. (shrink)

Sports medicine clinicians face conflicts of interest in providing medical care to athletes. Using a survey of college football players, this study evaluates whether athletes are aware of these conflicts of interest, whether these conflicts affect athlete trust in their health care providers, or whether conflicts or athletes' trust in stakeholders are associated with athletes' injury reporting behaviors.

Society has historically not taken a benign view of genetic disease. The laws permitting sterilization of the mentally re tarded~ and those proscribing consanguineous marriages are but two examples. Indeed as far back as the 5th-10th centuries, B.C.E., consanguineous unions were outlawed (Leviticus XVIII, 6). Case law has traditionally tended toward the conservative. It is reactive rather than directive, exerting its influence only after an individual or group has sustained injury and brought suit. In contrast, state legislatures have not (...) been inhibited in enacting statutes. Many of their products can be characterized as hasty, unnecessary, ill-conceived, and based on the heart rather than the head. Moreover the lack of expert consultation sought has also been remarkable. One state legislature, for example, has advocated immunization for sickle cell anemia! Many others have enacted laws for the screening of inborn errors of metabolism, e.g., phenylketon uria, but have poorly defined the lines of responsibility to secure compliance. A spate of specific disease-related bills has emerged in the u.S. Congress, each seeking recognition and appropriations. Sickle cell anemia, hemophilia, Cooley's anemia and Tay-Sachs disease have been among the front-runners for support. Finally, in 1975, Congress has begun to examine an omnibus bill concerning all forms of genetic disease. The bill, termed the National Genetic Diseases Act is, however, still far from being enacted. (shrink)

A core value of Judaism is leading an ethical life. The Talmud, an authoritative source on Jewish law and tradition, has a number of discussions that deal with honesty in business and decision-making. One motive that can cause individuals to be unscrupulous is the presence of a conflict of interest. This paper will define, discuss, and review five Talmudic concepts relevant to conflict of interest. They are (1) Nogea B’Davar (being an interested party), (2) V’hiyitem N’keyim (behaving to (...) ensure that one is above suspicion) (3) Lifnei Iver (placing a stumbling block before the blind), (4) Shokhad (accepting a bribe), and (5) Geneivat Da’at (deception and undeserved goodwill). Case examples will be used to apply these Talmudic principles to contemporary business practice. This will include discussion of these Talmudic concepts as it applies to specific contemporary business examples relevant to the boardroom, accounting firms, investment banking, politics, and government. It may be impossible to eliminate all conflicts of interest. However, knowledge and awareness of these Talmudic principles can help individuals in business settings better address the ethical issues that they confront. (shrink)

In both academic literature and the media, financial conflicts of interest in human subjects research have come center-stage. The cover of a recent edition of Time magazine features a research subject in a cage with the caption human guinea pigs, signifying perhaps that human research subjects are no more protected from research abuses than are laboratory animals. That magazine issue highlights three well-publicized cases of human subjects research violations that occurred at the University of Oklahoma, the University of Pennsylvania, and (...) Johns Hopkins University.At St. John Medical Center in Tulsa, Oklahoma, a study that was co-sponsored by the University of Oklahoma Health Sciences Center investigated an experimental vaccine for malignant melanoma. In that case, the chair of the university's institutional review board — the committee within each medical institution charged with ethics review of human research projects undertaken at that institution — and the dean of the University's College of Medicine allegedly concealed from both the IRB and the United States Food and Drug Administration a report by an outside consulting firm that had found severe deficiencies with the melanoma vaccine study being conducted at the medical center. (shrink)

In both academic literature and the media, financial conflicts of interest in human subjects research have come center-stage. The cover of a recent edition of Time magazine features a research subject in a cage with the caption human guinea pigs, signifying perhaps that human research subjects are no more protected from research abuses than are laboratory animals. That magazine issue highlights three well-publicized cases of human subjects research violations that occurred at the University of Oklahoma, the University of Pennsylvania, and (...) Johns Hopkins University.At St. John Medical Center in Tulsa, Oklahoma, a study that was co-sponsored by the University of Oklahoma Health Sciences Center investigated an experimental vaccine for malignant melanoma. In that case, the chair of the university's institutional review board — the committee within each medical institution charged with ethics review of human research projects undertaken at that institution — and the dean of the University's College of Medicine allegedly concealed from both the IRB and the United States Food and Drug Administration a report by an outside consulting firm that had found severe deficiencies with the melanoma vaccine study being conducted at the medical center. (shrink)