Lainie Friedman Ross
- Published in print:
- 2006
- Published Online:
- May 2006
- ISBN:
- 9780199273287
- eISBN:
- 9780191603655
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199273286.003.0006
- Subject:
- Philosophy, Moral Philosophy
This chapter presents an overview of the informed consent requirements and waivers in pediatric research under current federal regulations. These consent policies were adopted by the Food and Drug ...
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This chapter presents an overview of the informed consent requirements and waivers in pediatric research under current federal regulations. These consent policies were adopted by the Food and Drug Administration in April 2001 with the exception of parental waivers under Code of Federal Regulations section 46.408. The moral bases for these requirements are examined: whether the current policies are consistent with these moral foundations, and if not, how the policies should be modified.Less
This chapter presents an overview of the informed consent requirements and waivers in pediatric research under current federal regulations. These consent policies were adopted by the Food and Drug Administration in April 2001 with the exception of parental waivers under Code of Federal Regulations section 46.408. The moral bases for these requirements are examined: whether the current policies are consistent with these moral foundations, and if not, how the policies should be modified.
Mark F. Testa
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195321302
- eISBN:
- 9780199777457
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195321302.003.0009
- Subject:
- Social Work, Children and Families, Communities and Organizations
This chapter reviews the history of the IV-E waiver program and discusses some alternative proposals for promoting flexibility and innovation. In 2006, Congress did not renew the Health and Human ...
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This chapter reviews the history of the IV-E waiver program and discusses some alternative proposals for promoting flexibility and innovation. In 2006, Congress did not renew the Health and Human Services' (HHS) authority to grant new child welfare waivers. The chapter offers a set of recommendations for improving the use of IV-E waivers if Congress were ever to revive this program to promote results-oriented accountability (ROA) in child welfare.Less
This chapter reviews the history of the IV-E waiver program and discusses some alternative proposals for promoting flexibility and innovation. In 2006, Congress did not renew the Health and Human Services' (HHS) authority to grant new child welfare waivers. The chapter offers a set of recommendations for improving the use of IV-E waivers if Congress were ever to revive this program to promote results-oriented accountability (ROA) in child welfare.
Margaret Jane Radin
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691155333
- eISBN:
- 9781400844838
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691155333.003.0009
- Subject:
- Law, Company and Commercial Law
This chapter proposes an analytical framework for improving the evaluation of boilerplate. It begins with a discussion of questions for evaluating boilerplate rights deletion schemes; for example, ...
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This chapter proposes an analytical framework for improving the evaluation of boilerplate. It begins with a discussion of questions for evaluating boilerplate rights deletion schemes; for example, whether all of the rights granted and/or maintained by the state are appropriately considered default rules. It then describes three elements of analysis that can help illuminate how boilerplate waivers should be evaluated: the nature of the right in question and whether that right is alienable; the quality of consent by a recipient; and the extent of social dissemination of the rights deletion. It also examines the effect of nonconsent or market-inalienability on any purported contract, as well as the kinds of rights that are or should be subject to market-inalienability or partial market-inalienability in the presence of problematic consent. Finally, it explores political rights and interests, along with basic human rights and interests.Less
This chapter proposes an analytical framework for improving the evaluation of boilerplate. It begins with a discussion of questions for evaluating boilerplate rights deletion schemes; for example, whether all of the rights granted and/or maintained by the state are appropriately considered default rules. It then describes three elements of analysis that can help illuminate how boilerplate waivers should be evaluated: the nature of the right in question and whether that right is alienable; the quality of consent by a recipient; and the extent of social dissemination of the rights deletion. It also examines the effect of nonconsent or market-inalienability on any purported contract, as well as the kinds of rights that are or should be subject to market-inalienability or partial market-inalienability in the presence of problematic consent. Finally, it explores political rights and interests, along with basic human rights and interests.
Michael Lobban
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258826
- eISBN:
- 9780191705168
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258826.003.0012
- Subject:
- Law, Legal History
This chapter shows that despite the pervasive language of freedom of contract in mid-19th-century England, consumers had little bargaining power over the terms of the contracts they entered into for ...
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This chapter shows that despite the pervasive language of freedom of contract in mid-19th-century England, consumers had little bargaining power over the terms of the contracts they entered into for goods or services. While there were some moves towards developing consumer protection, the common law developed its rules on the implied obligations of sellers and suppliers, largely in commercial contexts. The relative weakness of consumers is reflected in the fact that they were more likely to find themselves faced with claims that they were prevented by express terms in a standard form contract from recovering for contractual misperformance by a powerful adversary.Less
This chapter shows that despite the pervasive language of freedom of contract in mid-19th-century England, consumers had little bargaining power over the terms of the contracts they entered into for goods or services. While there were some moves towards developing consumer protection, the common law developed its rules on the implied obligations of sellers and suppliers, largely in commercial contexts. The relative weakness of consumers is reflected in the fact that they were more likely to find themselves faced with claims that they were prevented by express terms in a standard form contract from recovering for contractual misperformance by a powerful adversary.
Lawrence S. Wrightsman and Mary L. Pitman
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199730902
- eISBN:
- 9780199776986
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199730902.003.007
- Subject:
- Psychology, Forensic Psychology
When the Miranda decision was announced, police feared it would inhibit their effectiveness in gaining the cooperation of suspects. This fear has not been borne out; 80 % of suspects waive their ...
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When the Miranda decision was announced, police feared it would inhibit their effectiveness in gaining the cooperation of suspects. This fear has not been borne out; 80 % of suspects waive their Miranda rights, and police have an extensive repertoire of ploys to cause suspects to confess. These include flattery and ingratiation, veiled threats, and deception.Less
When the Miranda decision was announced, police feared it would inhibit their effectiveness in gaining the cooperation of suspects. This fear has not been borne out; 80 % of suspects waive their Miranda rights, and police have an extensive repertoire of ploys to cause suspects to confess. These include flattery and ingratiation, veiled threats, and deception.
Matthew M. Briones
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691129488
- eISBN:
- 9781400842216
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691129488.003.0007
- Subject:
- History, American History: 20th Century
This chapter examines how the resettlement of West Coast Japanese Americans in the Midwest and Northeast after internment irrevocably transformed the population of Japanese Chicagoans. As both Allan ...
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This chapter examines how the resettlement of West Coast Japanese Americans in the Midwest and Northeast after internment irrevocably transformed the population of Japanese Chicagoans. As both Allan Austin and Gary Okihiro have demonstrated, many young Nisei managed to leave the camps earlier than expected by filing education waivers. They matriculated predominantly at midwestern and East Coast schools, and some of their campmates were recruited for Japanese-language immersion at the Military Intelligence Service Language School, based at Camp Savage, Minnesota. Yet residual delinquency among Nisei bachelors and the lack of children's playgrounds still made the North Side area less than appealing to Nisei families; hence, another critical mass of Japanese Americans congregated on the South Side.Less
This chapter examines how the resettlement of West Coast Japanese Americans in the Midwest and Northeast after internment irrevocably transformed the population of Japanese Chicagoans. As both Allan Austin and Gary Okihiro have demonstrated, many young Nisei managed to leave the camps earlier than expected by filing education waivers. They matriculated predominantly at midwestern and East Coast schools, and some of their campmates were recruited for Japanese-language immersion at the Military Intelligence Service Language School, based at Camp Savage, Minnesota. Yet residual delinquency among Nisei bachelors and the lack of children's playgrounds still made the North Side area less than appealing to Nisei families; hence, another critical mass of Japanese Americans congregated on the South Side.
Bernard M. Hoekman and Michel M. Kostecki
- Published in print:
- 2001
- Published Online:
- November 2003
- ISBN:
- 9780198294313
- eISBN:
- 9780191596445
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019829431X.003.0010
- Subject:
- Economics and Finance, International
The various mechanisms allowing for the re‐imposition of trade barriers are discussed in this chapter, which summarizes the rules on––and the economics of––the use of instruments of contingent ...
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The various mechanisms allowing for the re‐imposition of trade barriers are discussed in this chapter, which summarizes the rules on––and the economics of––the use of instruments of contingent protection. These have been very important in dealing with domestic political pressures and allowing the pursuit of non‐economic objectives. In practice, they have often been abused, to the detriment of both national and global welfare. The chapter focuses mainly on the safeguards and exceptions embodied in GATT (General Agreement on Tariffs and Trade); those of the GATS (General Agreement on Trade in Services) are very similar or still in development. The different sections are as follows: Renegotiation of concessions; Waivers; Emergency protection and VERs (voluntary export restraints); Antidumping actions; Measures to countervail subsidized imports; Trade restrictions for balance of payments purposes; Infant industry protection; General exceptions; and Conclusion.Less
The various mechanisms allowing for the re‐imposition of trade barriers are discussed in this chapter, which summarizes the rules on––and the economics of––the use of instruments of contingent protection. These have been very important in dealing with domestic political pressures and allowing the pursuit of non‐economic objectives. In practice, they have often been abused, to the detriment of both national and global welfare. The chapter focuses mainly on the safeguards and exceptions embodied in GATT (General Agreement on Tariffs and Trade); those of the GATS (General Agreement on Trade in Services) are very similar or still in development. The different sections are as follows: Renegotiation of concessions; Waivers; Emergency protection and VERs (voluntary export restraints); Antidumping actions; Measures to countervail subsidized imports; Trade restrictions for balance of payments purposes; Infant industry protection; General exceptions; and Conclusion.
Patrick Griffin
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199828166
- eISBN:
- 9780199951208
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199828166.003.0007
- Subject:
- Sociology, Law, Crime and Deviance
This chapter describes the complex patchwork of jurisdictional age, transfer, and blended sentencing laws that determine where, in any given state, the juvenile justice system leaves off and the ...
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This chapter describes the complex patchwork of jurisdictional age, transfer, and blended sentencing laws that determine where, in any given state, the juvenile justice system leaves off and the adult criminal justice system begins.Less
This chapter describes the complex patchwork of jurisdictional age, transfer, and blended sentencing laws that determine where, in any given state, the juvenile justice system leaves off and the adult criminal justice system begins.
James C. Howell, Barry C. Feld, and Daniel P. Mears
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199828166
- eISBN:
- 9780199951208
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199828166.003.0008
- Subject:
- Sociology, Law, Crime and Deviance
This chapter addresses what happens with older adolescents who transition into the criminal justice system, what should happen, and what we need to know. It emphasizes that neither the juvenile nor ...
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This chapter addresses what happens with older adolescents who transition into the criminal justice system, what should happen, and what we need to know. It emphasizes that neither the juvenile nor criminal justice system handles this offender group well. Studies have not found the wide diversity of measures in use to be effective, and little research has accompanied them. The States are left with dysfunctional—and sometimes contradictory—policies and practices. Key questions are addressed: Are vulnerable youth competent enough to understand judicial and court proceedings that affect their future? Are there assessments in place in the court to ascertain their competency? Are such assessments routine and do they have an impact on court proceedings? This chapter advocates a forward-looking administrative model in both the juvenile and adult criminal justice systems that bases program placements and supervision levels upon objective risk and needs assessments, competency assessments, and supports individualized case management plans focused on improving future behavior rather than punishing past behavior. In addition, the systematic adoption of research-based policies is needed, and a major investment in evaluation of the experimental policies and practices is necessary to determine to what extent they work.Less
This chapter addresses what happens with older adolescents who transition into the criminal justice system, what should happen, and what we need to know. It emphasizes that neither the juvenile nor criminal justice system handles this offender group well. Studies have not found the wide diversity of measures in use to be effective, and little research has accompanied them. The States are left with dysfunctional—and sometimes contradictory—policies and practices. Key questions are addressed: Are vulnerable youth competent enough to understand judicial and court proceedings that affect their future? Are there assessments in place in the court to ascertain their competency? Are such assessments routine and do they have an impact on court proceedings? This chapter advocates a forward-looking administrative model in both the juvenile and adult criminal justice systems that bases program placements and supervision levels upon objective risk and needs assessments, competency assessments, and supports individualized case management plans focused on improving future behavior rather than punishing past behavior. In addition, the systematic adoption of research-based policies is needed, and a major investment in evaluation of the experimental policies and practices is necessary to determine to what extent they work.
F. H. Buckley
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195341263
- eISBN:
- 9780199866892
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195341263.003.0007
- Subject:
- Law, Philosophy of Law
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 ...
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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
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.
Robert Stevens
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199211609
- eISBN:
- 9780191705946
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199211609.003.0002
- Subject:
- Law, Law of Obligations
The different senses in which ‘rights’ are used in every day language need to be differentiated. The most fundamental distinction to be grasped is that between a claim-right and a liberty, as drawn ...
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The different senses in which ‘rights’ are used in every day language need to be differentiated. The most fundamental distinction to be grasped is that between a claim-right and a liberty, as drawn by Hohfeld. The rights we have against the rest of the world are then considered. The characteristics of public rights, rights to reputation, and bodily integrity are scrutinised. The basic division between acts and omissions, misfeasance and non-feasance, is shown to be best explained and expressed in terms of the absence of any general right that others confer benefits upon us, including the protection from harm. Contractual rights do not exhaust the law of voluntarily assumed right, many of which are found within the common law. The ability of all of us to waive even our most fundamental rights, commonly put in Latin as volenti non fit injuria, sheds some light on why we have the rights we do.Less
The different senses in which ‘rights’ are used in every day language need to be differentiated. The most fundamental distinction to be grasped is that between a claim-right and a liberty, as drawn by Hohfeld. The rights we have against the rest of the world are then considered. The characteristics of public rights, rights to reputation, and bodily integrity are scrutinised. The basic division between acts and omissions, misfeasance and non-feasance, is shown to be best explained and expressed in terms of the absence of any general right that others confer benefits upon us, including the protection from harm. Contractual rights do not exhaust the law of voluntarily assumed right, many of which are found within the common law. The ability of all of us to waive even our most fundamental rights, commonly put in Latin as volenti non fit injuria, sheds some light on why we have the rights we do.
Petros C. Mavroidis
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199552139
- eISBN:
- 9780191716591
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199552139.003.0005
- Subject:
- Law, Public International Law
The institutional provisions of the GATT have been overtaken by the provision included in the Agreement Establishing the WTO. The Agreement Establishing the WTO largely replicated the GATT approach ...
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The institutional provisions of the GATT have been overtaken by the provision included in the Agreement Establishing the WTO. The Agreement Establishing the WTO largely replicated the GATT approach to institutional life: consensus remains the default rule for adopting decisions, except for dispute settlement. This chapter examines GATT and WTO provisions relating to participation, the decision making process, dispute settlement, waivers, transparency, and the relationship with the Havana Charter.Less
The institutional provisions of the GATT have been overtaken by the provision included in the Agreement Establishing the WTO. The Agreement Establishing the WTO largely replicated the GATT approach to institutional life: consensus remains the default rule for adopting decisions, except for dispute settlement. This chapter examines GATT and WTO provisions relating to participation, the decision making process, dispute settlement, waivers, transparency, and the relationship with the Havana Charter.
Alexander Orakhelashvili
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546220
- eISBN:
- 9780191720000
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546220.003.0014
- Subject:
- Law, Public International Law
This chapter demonstrates that unilateral acts and statements of States have to be interpreted according to their plain and ordinary meaning, just like treaties. It focuses on unilateral acts in ...
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This chapter demonstrates that unilateral acts and statements of States have to be interpreted according to their plain and ordinary meaning, just like treaties. It focuses on unilateral acts in general, on WTO Schedules of Commitment, interpretative declarations, waivers, and submissions of States to international tribunals.Less
This chapter demonstrates that unilateral acts and statements of States have to be interpreted according to their plain and ordinary meaning, just like treaties. It focuses on unilateral acts in general, on WTO Schedules of Commitment, interpretative declarations, waivers, and submissions of States to international tribunals.
Sarah Joseph
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199565894
- eISBN:
- 9780191728693
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199565894.003.0005
- Subject:
- Law, Public International Law, Human Rights and Immigration
This chapter first examines the notion of human rights trade sanctions, both on a general and a product basis. It then considers the relevant scope of the General Agreement on Tariffs and Trade 1947 ...
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This chapter first examines the notion of human rights trade sanctions, both on a general and a product basis. It then considers the relevant scope of the General Agreement on Tariffs and Trade 1947 (GATT) and General Agreement on Trade in Services (GATS) obligations, including the prohibitions on discrimination as well as relevant exceptions in Article XX of GATT and Article XIV of GATS. This law is examined with regard to its effect on human rights trade measures. The same analysis is then undertaken with regard to the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) and the Agreement on Technical Barriers to Trade (TBT). The most commonly proposed human rights trade measures relate to labour rights, so the possibility of a new labour rights or ‘social’ clause in the WTO is examined. The role of waivers in bringing WTO rules into compliance with human rights is then discussed. Finally, the potential for WTO rules to open up States to trade which improves human rights is examined, by inquiring into whether WTO rules might be used to challenge laws mandating extensive internet censorship.Less
This chapter first examines the notion of human rights trade sanctions, both on a general and a product basis. It then considers the relevant scope of the General Agreement on Tariffs and Trade 1947 (GATT) and General Agreement on Trade in Services (GATS) obligations, including the prohibitions on discrimination as well as relevant exceptions in Article XX of GATT and Article XIV of GATS. This law is examined with regard to its effect on human rights trade measures. The same analysis is then undertaken with regard to the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) and the Agreement on Technical Barriers to Trade (TBT). The most commonly proposed human rights trade measures relate to labour rights, so the possibility of a new labour rights or ‘social’ clause in the WTO is examined. The role of waivers in bringing WTO rules into compliance with human rights is then discussed. Finally, the potential for WTO rules to open up States to trade which improves human rights is examined, by inquiring into whether WTO rules might be used to challenge laws mandating extensive internet censorship.
Alexander Orakhelashvili
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546114
- eISBN:
- 9780191712203
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546114.003.0012
- Subject:
- Law, Public International Law
This chapter examines whether breaches of peremptory norms can be addressed after they are committed: through the devices of recognition, waiver, acquiescence, and prescription. After examining the ...
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This chapter examines whether breaches of peremptory norms can be addressed after they are committed: through the devices of recognition, waiver, acquiescence, and prescription. After examining the historical background, and conceptual basis of validation claims in doctrine, the analysis proceeds to examine each of the above devices on its own merit, and the impact of jus cogens on them.Less
This chapter examines whether breaches of peremptory norms can be addressed after they are committed: through the devices of recognition, waiver, acquiescence, and prescription. After examining the historical background, and conceptual basis of validation claims in doctrine, the analysis proceeds to examine each of the above devices on its own merit, and the impact of jus cogens on them.
Alexander Orakhelashvili
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546114
- eISBN:
- 9780191712203
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546114.003.0018
- Subject:
- Law, Public International Law
This chapter examines the legality of discontinuance and friendly settlement of cases brought before international tribunals and alleging breaches of jus cogens. The practice of major international ...
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This chapter examines the legality of discontinuance and friendly settlement of cases brought before international tribunals and alleging breaches of jus cogens. The practice of major international tribunals is covered.Less
This chapter examines the legality of discontinuance and friendly settlement of cases brought before international tribunals and alleging breaches of jus cogens. The practice of major international tribunals is covered.
Barbara J. Evans
- Published in print:
- 2014
- Published Online:
- January 2015
- ISBN:
- 9780262027465
- eISBN:
- 9780262320825
- Item type:
- chapter
- Publisher:
- The MIT Press
- DOI:
- 10.7551/mitpress/9780262027465.003.0022
- Subject:
- Biology, Bioethics
This chapter discusses informational (observational) studies that use pre-existing data or biospecimens. It summarizes existing regulatory pathways for gaining research or public health access to ...
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This chapter discusses informational (observational) studies that use pre-existing data or biospecimens. It summarizes existing regulatory pathways for gaining research or public health access to data and specimens under the Common Rule and HIPAA Privacy Rule and explores their defects. Non-consensual (unconsented) access to identifiable data and specimens is occasionally necessary to support socially beneficial public health and research studies where consent is impracticable or would introduce unacceptable biases into the study finding. The existing Common Rule waiver provisions, which allow IRBs to approve nonconsensual access, fail to meet the needs of modern informational research while also failing to provide adequate protection to people whose data and specimens are used. The recent ANPRM neglected this problem, and this chapter identifies needed substantive reforms and examines the appropriate processes and procedures for modernizing the Common Rule’s waiver provisions.Less
This chapter discusses informational (observational) studies that use pre-existing data or biospecimens. It summarizes existing regulatory pathways for gaining research or public health access to data and specimens under the Common Rule and HIPAA Privacy Rule and explores their defects. Non-consensual (unconsented) access to identifiable data and specimens is occasionally necessary to support socially beneficial public health and research studies where consent is impracticable or would introduce unacceptable biases into the study finding. The existing Common Rule waiver provisions, which allow IRBs to approve nonconsensual access, fail to meet the needs of modern informational research while also failing to provide adequate protection to people whose data and specimens are used. The recent ANPRM neglected this problem, and this chapter identifies needed substantive reforms and examines the appropriate processes and procedures for modernizing the Common Rule’s waiver provisions.
Henry S. Richardson
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780195388930
- eISBN:
- 9780199979196
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195388930.003.0005
- Subject:
- Philosophy, Moral Philosophy
If it were permissible for researchers to ask potential participants to waive their ancillary-care claims up front, no account of these claims and their correlative obligations would have much ...
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If it were permissible for researchers to ask potential participants to waive their ancillary-care claims up front, no account of these claims and their correlative obligations would have much practical import. Conceding that it is possible for participants to waive these claims, this chapter notes two kinds of moral obstacles to soliciting such waivers. The first is that (as argued in Chapter 3) researchers’ special ancillary-care obligations are ultimately grounded in a special responsibility towards their participants. Accordingly, even if the participants then turned around and also waived their ancillary-care claims, then, while that might extinguish researchers’ special obligations, narrowly understood, it would not extinguish their special responsibilities towards these participants. Secondly, because of asymmetries in medical knowledge between researchers and participants, important moral considerations call on medical researchers to exercise restraint in soliciting waivers of ancillary-care claims.Less
If it were permissible for researchers to ask potential participants to waive their ancillary-care claims up front, no account of these claims and their correlative obligations would have much practical import. Conceding that it is possible for participants to waive these claims, this chapter notes two kinds of moral obstacles to soliciting such waivers. The first is that (as argued in Chapter 3) researchers’ special ancillary-care obligations are ultimately grounded in a special responsibility towards their participants. Accordingly, even if the participants then turned around and also waived their ancillary-care claims, then, while that might extinguish researchers’ special obligations, narrowly understood, it would not extinguish their special responsibilities towards these participants. Secondly, because of asymmetries in medical knowledge between researchers and participants, important moral considerations call on medical researchers to exercise restraint in soliciting waivers of ancillary-care claims.
Graham Virgo
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199298501
- eISBN:
- 9780191713613
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199298501.003.0016
- Subject:
- Law, Law of Obligations
Where the claimant is the victim of a tort, exemplary damages may be awarded to punish the defendant for cynically committing a tort. Other remedies are available which are purely restitutionary in ...
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Where the claimant is the victim of a tort, exemplary damages may be awarded to punish the defendant for cynically committing a tort. Other remedies are available which are purely restitutionary in effect, notably restitutionary damages and money had and received. The most important question relating to the award of restitutionary remedies for torts is whether they are available regardless of the tort which is committed or whether they are only available in respect of certain torts. If the latter is the case, it is then necessary to identify the criteria which are used to identify those torts for which restitutionary relief is available. This chapter focuses on the so-called doctrine of ‘waiver of tort’ which has been particularly influential in the development of the law in this area. Torts for which restitutionary remedies are available include trespass to land, trespass to goods, conversion, interference with intellectual property rights, nuisance, deceit, and invasion of privacy.Less
Where the claimant is the victim of a tort, exemplary damages may be awarded to punish the defendant for cynically committing a tort. Other remedies are available which are purely restitutionary in effect, notably restitutionary damages and money had and received. The most important question relating to the award of restitutionary remedies for torts is whether they are available regardless of the tort which is committed or whether they are only available in respect of certain torts. If the latter is the case, it is then necessary to identify the criteria which are used to identify those torts for which restitutionary relief is available. This chapter focuses on the so-called doctrine of ‘waiver of tort’ which has been particularly influential in the development of the law in this area. Torts for which restitutionary remedies are available include trespass to land, trespass to goods, conversion, interference with intellectual property rights, nuisance, deceit, and invasion of privacy.
George C. Thomas III and Richard A. Leo
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780195338935
- eISBN:
- 9780199933303
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195338935.003.0010
- Subject:
- Law, Criminal Law and Criminology
Chapter 10 peers into the future and offers a global solution to Miranda’s ills. Whether suspects understood and waived their Miranda rights can best be answered by judges watching a recording of the ...
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Chapter 10 peers into the future and offers a global solution to Miranda’s ills. Whether suspects understood and waived their Miranda rights can best be answered by judges watching a recording of the interaction with the police. The same applies to determining whether statements made after waiver are voluntary—whatever that means. And if the suspect wishes the jury to reject the confession because it was not true, that, too, can best be assessed from the recording. Recording is, the chapter argues, an elegant solution to Miranda’s flaws. Moving to the interrogation of terrorism suspects, where the goal is information and not admissible evidence, the Supreme Court has not directly addressed the issue. Chavez v. Martinez in 2003, however, can be read to allow most of the techniques used at Guantánamo Bay under the Bush administration. Going forward, then, the interrogation of suspected terrorists will be treated differently from routine police interrogation. The latter interaction will follow a Miranda-as-notice principle, with a voluntariness standard applied when suspects waive Miranda, both questions to be answered by having the judge or jury view the interrogation.Less
Chapter 10 peers into the future and offers a global solution to Miranda’s ills. Whether suspects understood and waived their Miranda rights can best be answered by judges watching a recording of the interaction with the police. The same applies to determining whether statements made after waiver are voluntary—whatever that means. And if the suspect wishes the jury to reject the confession because it was not true, that, too, can best be assessed from the recording. Recording is, the chapter argues, an elegant solution to Miranda’s flaws. Moving to the interrogation of terrorism suspects, where the goal is information and not admissible evidence, the Supreme Court has not directly addressed the issue. Chavez v. Martinez in 2003, however, can be read to allow most of the techniques used at Guantánamo Bay under the Bush administration. Going forward, then, the interrogation of suspected terrorists will be treated differently from routine police interrogation. The latter interaction will follow a Miranda-as-notice principle, with a voluntariness standard applied when suspects waive Miranda, both questions to be answered by having the judge or jury view the interrogation.
