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John Major: Between the Party and the IGC

Kenneth Dyson and Kevin Featherstone

in The Road To Maastricht: Negotiating Economic and Monetary Union

With the failure to delay or block the EMU initiative, Major was left to bridge the unbridgeable, caught between a divided party and European credibility. Party divisions prevented any radical shift ... More

With the failure to delay or block the EMU initiative, Major was left to bridge the unbridgeable, caught between a divided party and European credibility. Party divisions prevented any radical shift of policy. More constructive rhetoric did not disguise essential policy continuity. Major's instincts were for pragmatism, but any scope for building alternative coalitions (e.g. with the German–Dutch bloc) were not exploited, despite compatibilities in policy belief (on monetary policy and on free markets). Thus, the end game became dominated by the technical design of an opt‐out from EMU and a weakening stage 2. The ‘victory’ on the opt‐out was somewhat hollow: not least because Britain's partners had all but given up on her. The problems of reconciling Britain's interests were graphically portrayed by its exit from the ERM in September 1992. The irony of Major's leadership was that, despite him giving priority to party unity, the Conservative Party was left in almost terminable decline and he failed to ease the constraints on his successor.Less

A Legal Options Approach to EC Company Law

Gerard Hertig and Joseph A. McCahery

in Investor Protection in Europe: Corporate Law Making, The MiFID and Beyond

In recent years, legal options have gained acceptance in the European Union. Legal options refer to the ex ante and ex post choices that are created by law. Not surprisingly, legislators have tended ... More

In recent years, legal options have gained acceptance in the European Union. Legal options refer to the ex ante and ex post choices that are created by law. Not surprisingly, legislators have tended to introduce choice for Member States or private parties when they have found it difficult to make headway with resolving a conflict. This chapter contends that allowing firms the choice of different legal rules would be beneficial and would respond to industry demands for low-cost regulatory choices. It shows that bringing options to the forefront of company law reform can reduce costs for small and medium-sized firms, and provide clear benefits to companies that differ in their ownership and control structure from most large public corporations. Switching to a company law regime with different sorts of options can have a good effect on stakeholders as well. As a regulatory strategy, it advocates a step-by-step change, beginning with the adoption of a limited number of opt-in provisions.Less

Consent and Uncertainty about the Wishes of the Dead

T. M. Wilkinson

in Ethics and the Acquisition of Organs

It is often not known what people want to happen to their bodies after they die. The chapter defends a policy under which organs may be taken where there is no good reason to think the deceased would ... More

It is often not known what people want to happen to their bodies after they die. The chapter defends a policy under which organs may be taken where there is no good reason to think the deceased would have objected and where the family do not object. The first part of the chapter is mainly about when and why organs may be taken from people who did not consent. In the case of the dead, their rights do not require consent but instead only doing what is likely to be in their interests. The second part connects the philosophical argument to the debates about presumed consent and opt out systems for organ retrieval. The chapter explains how its recommended policy differs little from widespread practices, including those in many ‘opt in’ countries. It assesses the effects on the organ supply of opt out defaults. It assesses the idea that the choice whether to donate can be framed so as to encourage donation.Less

Conclusion: Beyond Disclosurism

Omri Ben-Shahar and Carl E. Schneider

in More Than You Wanted to Know: The Failure of Mandated Disclosure

This concluding chapter clarifies that the book has argued that lawmakers must abandon the use of mandated disclosure, describing it as a failed regulatory method. The book has presented evidence ... More

This concluding chapter clarifies that the book has argued that lawmakers must abandon the use of mandated disclosure, describing it as a failed regulatory method. The book has presented evidence showing that disclosures routinely fail to achieve their purposes. If mandated disclosure is a failure, if it cannot be fixed, and if it can do harm, it should be presumptively barred. This chapter discusses some sources of helpful information that can succeed without mandates, with particular emphasis on three kinds of intermediaries: consultants, aggregators, and savvy consumers/readers—can all succeed without mandated disclosure. It also imagines a world without the panacea of mandated disclosure, comparing the role of defaults and opt outs in a panacea world. It argues that in the real world, default plans are just more disclosurism.Less

Voter Democracy: Fend for Yourself

Frank Hendriks

in Vital Democracy: A Theory of Democracy in Action

In voter democracy the citizens are king, particularly as preference indicators in directly aggregative procedures – as citizens who raise hands on matters in town meetings, make choices between ... More

In voter democracy the citizens are king, particularly as preference indicators in directly aggregative procedures – as citizens who raise hands on matters in town meetings, make choices between options in referendums, tick preference boxes in user questionnaires, etc. The distinction between citizenship and leadership is smaller in voter democracy than in pendulum or consensus democracy; public leaders are often private persons who take the initiative, literally, and mobilize support behind a proposal. In today's world, voter democracy is most clearly exhibited in the USA and Switzerland, places where ‘fend for yourself’ – an emphasis on self‐rule combined with self‐protection – is crucial. The core quality of voter democracy is the mobilization of private responsibility, initiative, and trust in the voluntary association of citizens. But ‘tragedies of the commons’ loom large; for each individual separately, voter democracy may seem like a good idea, but for all individuals together it may have tragic – irrational, illiberal – effects.Less

Should Rapid Tests for Hiv Infection Now Be Mandatory During Pregnancy or In Labor?

Margaret P. Battin, Leslie P. Francis, Jay A. Jacobson, and Charles B. Smith

in The Patient as Victim and Vector: Ethics and Infectious Disease

Since testing for HIV became possible in 1985, the testing of pregnant women has been primarily voluntary, “opt-in,” but there have been repeated predictions that with the development of more ... More

Since testing for HIV became possible in 1985, the testing of pregnant women has been primarily voluntary, “opt-in,” but there have been repeated predictions that with the development of more reliable testing and more effective therapy, testing should become routine with “opt-out” provisions, or even mandatory. This chapter asks—in the light of new technologies for rapid testing such as OraQuick and the capacity to reduce maternal/fetal transmission rates to less than 2%—whether that time is now. Illustrating the argument with cases from the United States, Kenya, Peru, and an undocumented Mexican worker in the United States, this chapter shows that when testing is accompanied by assured multi-drug continuing treatment for HIV for the mother, the argument for mandatory testing of pregnant women is strong, but that it is problematic where testing is accompanied by adverse events such as spousal abuse, or by inadequate intrapartum or followup treatment—the latter a circumstance common where aggressive AIDS testing programs are being introduced in many areas of the world. The difference is not a “double standard,” but reflects the presence of conflicts between the health interests of the mother and the fetus—conflicts that would be abrogated by the assurance of therapy. In light of these conflicts where they still occur, as in much of the world, careful processes of informed consent are appropriate, rather than mandatory or “opt-out” testing.Less

On the Eve of Maastricht

Tommaso Padoa‐Schioppa

in The Road to Monetary Union in Europe: The Emperor, the Kings, and the Genies

The state of play in the stages towards European economic and monetary union is analysed as at 1991. The issues that had already been settled by negotiation in this year are briefly discussed, and ... More

The state of play in the stages towards European economic and monetary union is analysed as at 1991. The issues that had already been settled by negotiation in this year are briefly discussed, and then those that were still open at the time (which concerned the transition to the final stage of union) are examined in more detail. These are essentially three issues: the tasks and powers of the monetary institution in stage two (the European Monetary Institute); the conditions (convergence criteria) that must be satisfied before passing from stage two to the final (third) stage; and the procedures for deciding the date on which the third stage is to start—the issue of the ‘opting‐out’ clause.Less

Endogenous Preferences

F. H. Buckley

in Fair Governance: Paternalism and Perfectionism

Preferences are endogenous to the legal regime when they are shaped by it, as they would be when populist legislation makes people more envious. Legal rules might also shape our preferences when they ... More

Preferences are endogenous to the legal regime when they are shaped by it, as they would be when populist legislation makes people more envious. Legal rules might also shape our preferences when they are taken to provide a persuasive moral guide, as where civil rights legislation weakens prejudices. However, legislative attempts to shape preferences can be abusive, as the experience with Canadian human rights codes shows. Default rules, which presume that we will make a particular choice unless we opt out, importantly affect how we choose, and this has been thought to make a case for “libertarian paternalism”. However, default rules are not libertarian unless they mimic the kinds of choices people would prefer if they thought about it; and in that case they're not paternalistic.Less

Securing Motherhood on the Home Front

Natalie Fixmer-Oraiz

in Homeland Maternity: US Security Culture and the New Reproductive Regime

This chapter examines two recent surges in pronatalism that aligned elite white women’s fertility with national security. It first discusses the “opt-out revolution” of the early twenty-first ... More

This chapter examines two recent surges in pronatalism that aligned elite white women’s fertility with national security. It first discusses the “opt-out revolution” of the early twenty-first century, which profiled an exodus of professional women from prestigious careers in favor of full-time domesticity. It turns then to the proliferation of fertility campaigns that targeted young professional women in the latter part of the decade, offering lifestyle directives and encouraging the use of assisted reproductive technologies to secure the possibility of pregnancy later in life. The chapter highlights how these pronatalist campaigns are usefully understood in concert; they highlight the valorization of elite motherhood as a critical dimension of homeland security culture.Less

Is a Physician Ever Obligated to Help a Patient Die?

Margaret Pabst Battin

in Ending Life: Ethics and the Way We Die

Is a physician ever obligated to help a patient die? If physician-assisted suicide were to become legal or legally tolerated, would the patient have a right to assistance, a right held against the ... More

Is a physician ever obligated to help a patient die? If physician-assisted suicide were to become legal or legally tolerated, would the patient have a right to assistance, a right held against the physician for performance of this duty? In voter initiatives in Washington, California, and Oregon, in state legislative initiatives, in model statutes such as that of the Boston Working Group, and so on, all proposals have opt-out provisions, or “conscience clauses”, that permit physicians to refuse to participate in a suicide. But the basis of opt-out clauses — the ubiquitous assumption that a physician's scruples provide adequate justification, legally and morally, for excusing him or her from assisting in suicide — is rarely challenged. This chapter reviews the principal arguments for and against physician-assisted suicide in terminal illness. Two kinds of a dying patient's rights to assistance in suicide are considered: the “negative” right and the “positive” right. The moral argument in favor of permitting physician assistance in suicide is grounded in the conjunction of two principles: self-determination (or autonomy) and mercy (or the avoidance of suffering).Less

Maximizing or Minimizing Opt-Outs

in Mass Torts in a World of Settlement

This chapter covers other efforts to draw upon class settlements as vehicles for peace, whether by expanding or constraining in practical terms the opportunity of persons within the class to opt out ... More

This chapter covers other efforts to draw upon class settlements as vehicles for peace, whether by expanding or constraining in practical terms the opportunity of persons within the class to opt out of the peace plan and thereby to preserve their opportunity to bring a conventional, individual tort action. It employs the examples of fen-phen and the Sulzer hip implant examples to highlight the fundamental tension in mass tort class settlements between legitimacy and peace. The continued existence of the tort system provides a safety valve that circumscribes the law reform power of the class settlement. The fen-phen class settlement did not stop the progress of litigation toward those dysfunctions.Less

Lodging of an Application to opt out and withdrawal of an opt-out

Winfried Tilmann

in Unified Patent Protection in Europe: A Commentary

On the effective date of the opt-out notification, a European patent without unitary effect (here: patent) is excluded from the competence of the UPC in respect of all its claims and for all ... More

On the effective date of the opt-out notification, a European patent without unitary effect (here: patent) is excluded from the competence of the UPC in respect of all its claims and for all countries of protection (on the latter point, → Rule 5.1(b) UPCARoP). For the actions listed in Art 32(1) UPCA, only those national courts that would be competent if the UPC did not exist are competent. That said, the patent is not excluded from the UPCA. Its harmonizing provisions are also to be applied by the national courts competent after the opt-out. For details, refer to the commentary on Art 83 UPCA. The expression ‘exclusive competence’ in para 1 of Rule 5 UPCARoP has given rise to misunderstandings. What is meant is that the competence of the UPC referred to as exclusive in Art 32(1) UPCA is lifted and replaced by the exclusive competence of the national courts. Less

Orphan Works

Maurizio Borghi and Stavroula Karapapa

in Copyright and Mass Digitization

Orphan and out-of-print works, which embody a significant part of our cultural heritage, are a significant impediment towards the formation of digital libraries and mass digital archives. In its ... More

Orphan and out-of-print works, which embody a significant part of our cultural heritage, are a significant impediment towards the formation of digital libraries and mass digital archives. In its limited capacity, the EU Directive on orphan works does not provide an undisputed solution as it does not cover commercial uses of orphan works, and is hence not suitable in the context of mass digitization. The US has not enacted legislation in this regard, but there have been a number of private ordering mechanisms, such as in the context of Google Books and the HathiTrust Orphan Work Project. The question however remains: does the fact that a digital library includes orphan and out-of-print works signal the creation of entitlements over the entire corpus?Less

Immunization and the Hpv Vaccine

Margaret P. Battin, Leslie P. Francis, Jay A. Jacobson, and Charles B. Smith

in The Patient as Victim and Vector: Ethics and Infectious Disease

The human papilloma virus (HPV) vaccine has the potential to significantly reduce the incidence of cervical cancer in women who receive the vaccine before they are sexually active and thus become at ... More

The human papilloma virus (HPV) vaccine has the potential to significantly reduce the incidence of cervical cancer in women who receive the vaccine before they are sexually active and thus become at risk of becoming infected with HPV. This chapter explores the debate over mandating that girls aged 11-12 years receive the (HPV) vaccine as a requirement for school entry. The religious and principled objections posed to mandatory immunization practices are reviewed in general as well as the unique issues related to the fact that HPV is a sexually transmitted disease; also examined are the justice issues raised by the fact that the HPV vaccine is too expensive to be available to the large populations of women in developing countries, yet other methods of cervical cancer detection and prevention are not available. The PVV view suggests that, as with other immunizations, an opt-out option should be maintained, but only for the most strongly held religious or other personal beliefs. Any decision maker—a competent adult, the parent of an infant or an adolescent, an adolescent along with the parent, or a policy maker—must take into account the consequences for both victims and vectors of decisions that are made about disease that can be controlled by immunization.Less

Supranational Differentiation and Enhanced Cooperation

Daniel Thym

in Oxford Principles Of European Union Law: The European Union Legal Order: Volume I

The ‘unity dogma’ has long characterized European law discourse. In many of its landmark judgments, the European Court of Justice had recourse to the ‘unity argument’—such as in Costa v ENEL, where ... More

The ‘unity dogma’ has long characterized European law discourse. In many of its landmark judgments, the European Court of Justice had recourse to the ‘unity argument’—such as in Costa v ENEL, where the Court stated that ‘the executive force of Community law cannot vary from one state to another … without jeopardizing the attainment of the objectives of the Treaty’. Unilateral national deviations could not be tolerated without the common rules ‘being deprived of their character as Community law and without the legal basis of the Community itself being called into question’. Other expressions of the ‘unity dogma’ include the principle of non-discrimination or the uniform composition of EU institutions. This contribution demonstrates that the asymmetric non-participation of some Member States in selected policy areas can be embedded into the supranational legal order. The main danger seems to be a structural weakening of political legitimacy. Less

Battles on Working Time: Rejecting Court Influence

Dorte Sindbjerg Martinsen

in An Ever More Powerful Court?: The Political Constraints of Legal Integration in the European Union

The chapter examines the dynamics between judicial and legislative politics in the EU regulation of working time. The case study unfolds the process through which the Working Time Directive was ... More

The chapter examines the dynamics between judicial and legislative politics in the EU regulation of working time. The case study unfolds the process through which the Working Time Directive was initially adopted, and how subsequently the definition of working time as laid down in the directive was seriously disrupted by legal interpretations. The political responses to legal integration are then investigated by tracing why judicial influence on the policy output was ultimately rejected, despite intense and prolonged interaction between political actors and social partners.Less

Turning Copyright on its Head?

Maurizio Borghi and Stavroula Karapapa

in Copyright and Mass Digitization

The technological shift occurring with mass digitization impacts on established copyright norms and principles in a number of ways. It challenges the common perception of the concept of copyright ... More

The technological shift occurring with mass digitization impacts on established copyright norms and principles in a number of ways. It challenges the common perception of the concept of copyright use; the meaning and function of the work as the subject matter of protection; the grounds of entitlements to rights; and the scope of the exclusivity of such rights. It has been observed that, in many instances, mass digitization begs for a re-definition of copyright from a system of ex ante permission to one where rightholders have merely a right to ‘opt out’ from having their works used in certain ways. This is what has been described as ‘turning copyright law on its head’.Less

Choosing the Type of Income-Contingent Loan:: Risk-Sharing versus Risk-Pooling

Elena Del Rey and María Racionero

in The Mobility of Students and the Highly Skilled: Implications for Education Financing and Economic Policy

This chapter provides a formal model that complements the discussion conducted in Chapter 7. It analyzes the choice between risk-sharing and risk-pooling income-contingent loans for higher education ... More

This chapter provides a formal model that complements the discussion conducted in Chapter 7. It analyzes the choice between risk-sharing and risk-pooling income-contingent loans for higher education of risk-averse individuals who differ in their ability to benefit from education and in their inherited wealth. The chapter derives the possible outcomes of a majority vote between the two income-contingent loan schemes and identifies cases where the risk-pooling income-contingent loan is preferred. It then discusses the implications of mobile graduates for participation and voting outcomes. Risk-pooling schemes can however be prone to adverse selection problems, particularly if students are mobile. The chapter explores the implications of allowing students to opt out of the risk-pooling income-contingent loan for a pure loan. It shows that risk-pooling income-contingent loans can be sustained even when some students opt out.Less