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)

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)

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)

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)

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)

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.

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)

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)

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)

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)

Why do physicians have financial conflicts of interest? They arise because society expects physicians to act in their patients’ interest, while simultaneously, financial incentives encourage physicians to practice medicine in ways that promote their own interests or those of third parties. Because physicians’ clinical choices, referrals, and prescriptions affect the fortune of third parties, these third parties may offer physicians financial incentives to make income-driven clinical choices. In the past, physicians and scholars typically conceived of conflicts of interest as an (...) ethical issue to be resolved according to individual judgment or professional and organizational norms. However, society can mitigate or eliminate conflicts of interest by changing financial and organizational arrangements in medicine. Conflicts of interest, therefore, are as much matters of public policy and management as individual choices or social norms. (shrink)

The medical profession is under a state of increasing scrutiny. Recent high profile scandals regarding substantial industry payments to physicians, surgeons, and medical researchers have raised serious concerns over conflicts of interest. Amidst this background, the public, physicians, and policymakers alike appear to make the same assumption regarding conflicts of interest; that doctors who succumb to influences from industry are making a deliberate choice of self-interest over professionalism and that these doctors are corrupt. In reality, a myriad of evidence from (...) social science indicates that influence from conflicts of interest often occurs on a subconscious and unintentional level. This poses an important issue, since such conflicts can steer wellintentioned physicians away from their primary professional goal to provide the best medical advice and treatment possible. (shrink)

The book provides an overview of how international law is today constructed through diverse macro and microprocesses that expand its traditional subjects and sources, with the attribution of sovereign capacity and power to the international plane (moving the international toward the national). Simultaneously, national laws approximate laws of other nations (moving among nations or moving the national toward the international), and new sources of legal norms emerge, independent of states and international organisations. This expansion occurs in many subject (...) areas, with specific structures: commercial, environmental, human rights, humanitarian, financial, criminal, and labor law contribute to the formation of postnational law with different modes of functioning, different actors, and different sources of law that should be understood as a new complexity of law. (shrink)

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)

This article examines conflicts of interest in the context of scientific research related to regulation or litigation. The article defines conflicts of interest, considers how conflicts of interest can impact research, and discusses different strategies for dealing with conflicts of interest. While it is not realistic to expect that scientific research related to regulation or litigation will ever be free from conflicts of interest, society should consider taking some practical steps to minimize the impact of these conflicts, such as requiring (...) full disclosure of information required for independent evaluation of research, prohibiting financial relationships between regulatory agencies and the companies they regulate, and banning payments to expert witnesses for specific research results, testimony or legal outcomes. (shrink)

In contemporary medicine, it is not always obvious whether the acceptance of a benefit constitutes a conflict of interest. A particular area of controversy has been the impact of small gifts or other benefits from pharmaceutical companies on physicians' behaviour. Typically, in such cases, the gift is not an explicit reward for cooperation; the physician does not perceive the gift as an attempt to influence his or her judgement; and the reward is relatively minor. Under these circumstances, physicians are (...) generally of the view that acceptance of gifts will not affect their behaviour, notwithstanding findings from social psychology and neuroscience that the impact of gifts is often unconscious, shaping action without a person's awareness. Here, we draw on traditional texts of Jewish law pertaining to the prohibition of taking a gift to illustrate recognition by the ancients of unconscious conflicts of interest, and their approach to dealing with the problem. (shrink)

In spite of recent efforts to promote cooperation between universities and industry, Germany still lacks a sufficient legal framework for regulating potential conflicts of interest resulting from university-industry cooperation. Prospective regulation of conflicts of interest has to take into account specific constraints imposed by the German constitution. It has to follow stringent procedural and material requirements and carefully weigh the individual researcher’s right to academic freedom against the public demand for objectivity in research. Because of this cautious consideration of the (...) conflicting interests constitutionally mandated in Germany, a potential regulation legitimate in this country may serve as a model for other countries facing the need of the adoption of such a regulation. (shrink)

This paper analyzes ethical issues relating to lawyer mobility.

Conflicts of interest in corporate law can be addressed by two main alternatives: a requirement of a majority of the minority vote or the imposition of duties of loyalty and fairness. A comparison of Delaware, the UK, Canada, and Israel reveals that while the conflicts of interest problem within publicly-traded corporations receives different treatment in the different jurisdictions — either a fairness rule or a majority of the minority rule — closely-held corporations receive the same treatment of an imposition of (...) duties of loyalty and fairness. This article explains this finding, demonstrating that determining which of these rules is adopted is, in fact, a choice between liability rule protection and property rule protection. This choice depends on the total and relative transaction costs. These costs include both the negotiation costs attendant upon a property rule, as well as the adjudication costs associated with a liability rule. The sum of these costs is influenced by the efficacy of the judicial system and of extralegal mechanisms such as the market for corporate control, the capital market, and the types of investors active in the market. Because the different jurisdictions have different relative costs, due to differences in the economy and the legal systems, publicly-traded corporations are treated differently in each system. However, sometimes conflict of interest situations share the same main characteristics — as with closely-held corporations—leading to the domination of one solution, and thus the same solution is applied for closely-held corporations in the different jurisdictions. (shrink)

"[W]e must focus on what legalism, per se, means, and then ask why is it a good thing to have. Not less importantly, however, we must also realize that legalism can be excessive. Even if the rule of law is a good thing, too much of it may be bad. So the challenge for a theory of the rule of law is to articulate what the rule of law is, why is it good, and to what extent." "[T]he essense of (...) the ideal of the rule of law is that people ought to be governed by law. This general ideal has at least two main components. First, it requires that governments, namely, de facto political authorities, should rule, that is, guide their subjects' conduct, by law. Second, it requires that the law by which governments purport to rule should be such that it can actually guide human conduct." "The idea that governments should rule by law must be premised on the assumption that rule by law, regardless of the laws' specific content, is to be preferred to governance by other means of social control. And this immediately brings us to the second component of the rule of law, namely, that the law must be such that it can actually guide human conduct, and the further assumption that these necessary features of law embody certain virtues. In other words, unless we can first articulate what is unique about legal means of social control, and explain why those features promote certain goods, we cannot ground the idea that governments should rule by law." Discusses ways, following mainly Fuller, one can fail to make law. Notes that these are functional goods for the regulation of human behavior. They may have a connection to other things we value. We should not assume, though, that greater instantiation of these ideals is always better - sometimes ideals conflict such that more of one means less of another and "because such values, on their own grounds, set only a rough standard wherby gross deviations from it would be wrong." "Compliance with the generality-relevance principle is crucially important in safeguarding against such unjustified favoritism since it requires that the norm's subjects be those who qualify as such only on the basis of the reasons for enacting the norm in the first place." Though, we must recognize teh possibility of bad law in the sense of unjust discrimination. "It is part of the concept of law that the law purports to affect human behavior by introducing new norms and changing old ones. The concept of a norm and conduct-guidance by norms is an essential aspect of what the law is. Norms, as such, necessarily purport to provide reasons for action. A norm cannot provide a reason for action, however, unless its subjets are aware of the norm and regard it as a reason for action." Justifies some retroactivity in terms of the need for flexibility in any functioning legal system. "Legal positivism can accept the claim that law is, by its very nature or its essential functions in society, something good that deserves our moral appreciation. Nor is legal positivism forced to deny the plausible claim that wherever law exists, it must have a great many prescriptions which coincide with morality. There is probably a considerable overlap, and perhaps necessarily so, between the actual content of law and morality.". (shrink)

What is a conflict of interest? What is morally problematic about one? Beginning with the definition, this paper organizes the core literature and creates two continuums—one devoted to the more specific definition of ‘interest,’ and the other to that of ‘duty’. Each continuum places the authors according to the narrowness or broadness of their positions, which facilitates the understanding of the debate as well as what is at stake when defining conflicts of interest. The paper then develops a moral (...) analysis that leads to the sought-for definition and to an explanation of why we should treat conflicts of interest carefully. While doing so, the paper discloses the criterion to judge whether a definition is right and presents the duties that makes conflicts of interest special as ‘tertiary’ duties of morality. (shrink)

Investigator and institutional financial conflicts of interest have raised concerns about both the integrity of clinical research and protecting the rights and welfare of research participants. In response, professional groups and governmental bodies have issued guidance for managing conflicts of interest to minimize their potential untoward effects. Although a variety of approaches have been offered, a common protection is to disclose financial interests in research to potential research participants as part of the recruitment and informed consent process. This approach reinforces (...) a basic norm of candor, ideally allowing potential research participants to evaluate whether financial interests should affect their decision to participate in research. Disclosure to potential research participants is viewed as an alternative to having regulators or research institutions limit or prohibit all financial interests in research, assuming that not all such interests are unacceptable. (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.

The primary claim of this paper is that intellectual conflicts of interest (COIs) exist but are of lower ethical priority than COIs flowing from relationships between health professionals and commercial industry characterized by financial exchange. The paper begins by defining intellectual COIs and framing them in the context of scholarship on non-financial COIs. However, the paper explains that the crucial distinction is not between financial and non-financial COIs but is rather between motivations for bias that flow from relationships and those (...) that do not. While commitments to particular ideas or perspectives can cause all manner of cognitive bias, that fact does not justify denying the enormous power that relationships featuring pecuniary gain have on professional behaviour in term of care, policy, or both. Sufficient reason exists to take both intellectual COIs and financial COIs seriously, but this paper demonstrates why the latter is of higher ethical priority. Multiple reasons will be provided, but the primary rationale grounding the claim is that intellectual COIs may provide reasons to suspect cognitive bias but they do not typically involve a loss of trust in a social role. The same cannot be said for COIs flowing from relationships between health professionals and commercial industries involving financial exchange. The paper then assumes arguendo that the primary rationale is mistaken and proceeds to show why the claims that intellectual COIs are more significant than relationship-based COIs are dubious on their own merits. The final section of the paper summarizes and concludes. (shrink)

The law of the future faces fundamental challenges that it cannot overcome by means of ‘tried and trusted’ dogmatics alone. Nor can it, from a methodological standpoint, take refuge in a purportedly apolitical hermeneutics or a one-sided application of empirical methods. Its responsibilities are not exhausted in mere steering, innovation or stimulating operations, but also encompass critical-emancipatory functions. Methodological reflection and legal critique - understood as social theory in the ‘interior’ of law - enable legal doctrine to meet the particular (...) demands that arise from the simultaneous affiliation of jurisprudence to the systems of law and science. The future development of legal studies thus requires a foundational research approach that preserves the interdisciplinary connection to neighbouring disciplines in the humanities and social sciences, and provides impetus for enlightened self-critique and self-reflection. Only in this way - through the emergence of jurisprudence from its self-incurred ignorance regarding its social function - might legal practice assert itself in everyday legal life and confront the injustices of the legal world with its own thinking. Such critical legal thinking demands more than just the perpetuation of traditions based on the history of ideas. Nor can it be satisfied through the mere cultivation of empirical approaches to reality. It must aim to develop and unfold a normative concept of law, and write this forward into the future. It derives its essential reflective potential from social-theoretical modelling and methodological development. In the process, the reciprocal confrontation and translation of rival theoretical models opens new learning possibilities not to solve legal conflicts, but to treat them more judiciously. Here, it is above all the foundational legal subjects that, through their discrete approaches and perspectives, open diverse and flexible entryways to the potentialities and actualities of law and, particularly in light of new cases, ensure the necessary variance of options for perception and action. The future of law resides in experimental testing and innovative discovery, in the creative quest for alternative possibilities and possible realities, in the critical and constructive struggle for the law of the future - as the ecological law of future life in the next bio-digital society. (shrink)

It is often claimed that managed care organizations involve physicians in conflicts of interest by creating financial incentives for physicians to refrain from ordering treatments or making referrals. Such incentives, the argument goes, force the physician to balance the patient's health interests against the MCO's interests and the physician's own financial interest. I assume, for the sake of argument, that such arrangements at least provide reason to believe that physicians in MCOs are involved in conflicts of interest. Two approaches have (...) evolved for dealing with these conflicts. On one approach, MCOs disclose the financial arrangements under which their physicians work so that patients can consent to the managed care plan and thereby to the plan's limitations. The chief proponent of this approach is Mark Hall, whose recent book Making Medical Spending Decisions applies prior consent to a variety of decisions regarding medical financing and allocation. The other approach is simply to forbid conflicts of interest through regulations. (shrink)