"The cases are presented in a concise and interesting manner... highlights the emerging consciousness of the importance of the contractual arrangement between physician and patient... " --Journal of the American Medical Association "The cases presented are interesting ones, and the commentaries are uniformly lucid.... Highly recommended... " --Religious Studies Review "Cohen contributes a well-selected collection of cases and commentaries which are presented in a crisp style... it is likely to have a real impact." --Ethics Twenty-six reports based on actual (...) cases with expert commentary that illuminate the ethical, medical, legal, and psychological contours of dilemmas surrounding termination of treatment decisions. Cases involve patients, families, physicians, nurses, lawyers, and health care administrators. A companion volume to the Hastings Center's Guidelines. See Guidelines for ad quotes when advertising both books. (shrink)

A nexus of imperfect duty, defined as positive commitments that have practical limits, describes business behavior toward building affable and virtuous relations, maintaining reasoned social discourse, and performing the due diligence necessary for making knowledgeable business decisions. A theory of the development and extent of the limits of these imperfect managerial duties is presented here, a theory that in part explains the activities and personnel included under the firm’s umbrella. As a result, the nexus of imperfect duty is shown to (...) complement the perfect-duty-based nexus-of-contracts theory of the firm. The existence of flexible trade-offs involving these duties, trade-offs limited by contractual arrangements whether explicit or implicit, is shown to be one of the advantages of imperfect duty for developing business relations. (shrink)

Awareness of the morally significant distinction between research and innovative therapy reveals serious gaps in the legal provision for compensation in the UK for injured subjects of medical research. Major problems are limitations inherent in negligence actions and a culture that emphasises indemnifying researchers before compensating victims. Medical research morally requires compensation on a no-fault basis even where there is proper consent on the part of the research subject. In particular, for drug research, there is insufficient provision in the current (...) patient guidelines of the Association of the British Pharmaceutical Industry, since they make "no legal commitment" to paying compensation for injury to patient subjects. There is a need for the provision of both adequate insurance and contractual arrangements for making payments. The solution is for Local Research Ethics Committees (LRECs) to make use of their power to withhold approval of medical research where compensation is not legally enforceable. (shrink)

In a number of recent articles, the debate on the ethics of fractional reserve “free” banking has been extended to loan maturity mismatching, specifically the banking practice of borrowing short and lending long. Barnett and Block :711–716, 2009; 2010) claim the practice is illicit, because like fractional reserve banking it creates duplicate property titles. They argue there is a continuum in the time dimension between the two kinds of activities. Bagus and Howden :399–406, 2009; 106:295–300, 2012a; Eur J Law Econ, (...) 2012b; Bus Ethics 22:235–245, 2013) maintain that loan maturity mismatching does not create duplicate titles and is not illicit, and that from an economic and legal perspective there is no continuum with fractional reserve banking. Cachanosky and Evans enter the debate from the free-banking standpoint and view both practices as legitimate. In this paper, I agree with the conclusions of Bagus and Howden, but adopt a different approach to support this position. Using the title-transfer theory of contract, I demonstrate from first principles why loan maturity mismatching does not create duplicate property titles and is a legitimate practice. Employing this same theory, I then present a novel argument to show why the contractual arrangements found in fractional reserve banking are logically contradictory and illegitimate. (shrink)

Tracing graduates has become an imperative for higher education institutions much more during the pandemic. This tracer determined the employment and employability status of the 2019 BSE graduates and identified the competencies they adequately acquired and deemed vital for work. It used descriptive design, and data were collected from the 103 graduates through a google form with open and closed-ended questions administered between November and December 2020. Results revealed that most of the graduates had been employed in teaching and teaching-related (...) jobs but mostly in contractual arrangements within the first and second six months after graduation. Many had their first jobs with meager salaries from the private sector. Communication, pedagogy, information communication technology, time management, and flexibility were the top competencies they adequately acquired and were beneficial in work. The study concluded that these graduates had acquired 21st-century skills in their respective degree programs. These results have corresponding implications for future research in confirming the most employable skills in secondary teaching. As recommended, classroom instruction might emphasize the development of these skills. Eventually, these become the competitive advantage and employability capitals of future graduates. Administering the licensure examination and the release of its results can be done within the first three months after graduation to lessen the cost of waiting. (shrink)

Some transplant centers are making use of a four‐person organ exchange to encourage live donor kidney transplantation. Although no money changes hands, it is a quasi‐contractual arrangement and a step toward for‐profit transactions, and it threatens to undermine the organ donor system.

The construction industry consistently ranks amongst the highest contributors to global gross domestic product, as well as, amongst the most corrupt. Corruption therefore inflicts significant risk on construction activities, and overall economic development. These facts are widely known, but the various sources and nature of corruption risks endemic to the Iranian construction industry, along with the degree to which such risks manifest, and the strength of their impact, remain undescribed. To address the gap, a mixed methods approach is used; with (...) a questionnaire, 103 responses were received, and these were followed up with semi-structured interviews. Results were processed using social network analysis. Four major corruption risks were identified: procedural violations in awarding contracts, misuse of contractual arrangements, neglect of project management principles, and, irrational decision making. While corruption risks in Iran align with those found in other countries, with funds being misappropriated for financial gain, Iran also shows a strong inclination to champion projects that serve the government’s political agenda. Root cause identification of corruption risks, namely, the noticeable impact of authoritarianism on project selection in Iran, over criterion of economic benefit or social good, is a significant outcome of this study. (shrink)

Some commentators maintain that gestational surrogates are not ‘mothers’ in a way capable of grounding a claim to motherhood. These commentators find that the practices that constitute motherhood do not extend to gestational surrogates. We argue that gestational surrogates should be construed as mothers of the children they bear, even if they fully intend to surrender those children at birth to the care of others. These women stand in a certain relationship to the expected children: they live in changed moral (...) circumstances by reason of their pregnancy, and they engage in the practices said to define motherhood in the post‐birth context. By contrast, ovum donors and embryo donors are not similarly ‘mothers’ because they do not find themselves involved in these circumstances. Not all women involved in three‐parent in vitro fertilization qualify as mothers either. Given this analysis of mothering, we note that transmen who gestate children are engaged in mothering activity even if they otherwise function as a father to those children. By itself, this defence of the maternity of gestational surrogates does not confer moral title to the children they bear; gestation would not by itself override the contractual arrangements gestational surrogates have made regarding the disposition of their children. This interpretation of gestational surrogates as mothers does, however, undercut cultural understandings of these women as mere ‘vessels’, devoid of entitlement to respect as persons and parents. We also consider the meaning of mothering for ‘brain‐dead’ women kept alive to give birth and for the prospect of extracorporeal gestation. (shrink)

Money markets are at the heart of financialized capitalism, as those markets that provide the funding liquidity needed for credit creation and leveraged trading. How have these markets evolved, grown, and become critical for larger financial flows? To answer this question, I distinguish an early period of financial globalization marked by regulatory arbitrage, offshoring, deregulation, and informal trading practices from a period of regime-consolidation marked by formal institutionalization. Concentrating on repo markets as the key funding sources for market-based banking, I (...) demonstrate that new institutional arrangements for these markets were initiated by private sector associations, but supported and authorized by public authorities. Bond trader groups codified new contractual arrangements and these were validated via reforms of bankruptcy codes and changes in central banks’ policy frameworks in the United States and European Union. Through these modifications and re-articulations in institutional conditions, transactions and large exposures on money markets became routine affairs—for shadow banking actors like money market funds as well as for commercial banks. The article concludes by discussing the continuity of regime-consolidation efforts after the transatlantic financial crisis and hypothesizes that they reveal “neo-patrimonial” features. (shrink)

Philosophy & Social Criticism, Volume 48, Issue 3, Page 386-415, March 2022. In light of a growing body of scholarship that has cast doubt on the analytic import of spontaneous order, the purpose of my article is to rethink the intellectual relationship between Edmund Burke and Friedrich Hayek by suggesting that reading spontaneous order into Burke’s thought introduces greater tensions between the two thinkers than prior scholars have suggested. One crucial tension, I suggest, is that Hayek believed that contractual (...) arrangements, competitive markets and the rule of law could sustain the growth of social order, while Burke maintained that particular social institutions and practices should remain protected from the full power of voluntary contracts and exchange relations. I conclude by suggesting that the tensions between Hayek and Burke could serve as complementary instruments, rather than as foes, in strengthening the liberal project in modernity. (shrink)

ABSTRACT:This article outlines the policy context for teachers’ learning and continuing professional development in Scotland and considers this in relation to the perspectives of key informants gained through interview. The analysis draws on a triple-lens conceptual framework and points to some interesting contradictions between the policy text and the expressed aspirations of the interviewees. Current policy and the associated structural arrangements are viewed as broadly positive, but interviewees express concerns that an unintended emphasis on contractual arrangements might (...) inhibit the more transformative elements of professional learning. (shrink)

Philosophical writing on probability theory includes a great many articles discussing relationships between rational behavior and an agent’s susceptibility to betting contexts where an overall loss is mathematically inevitable. What the dutch book theorem establishes is that this kind of susceptibility is a consequence of having betting ratios that are in violation of the Kolmogorov probability axioms. In this article it is noted that a general result to rule out arbitrage can be shown to yield the dutch book theorem as (...) a special case. A formal framework is set forth to handle marketplace transactions involving contractual arrangements; and, within that framework, necessary and sufficient conditions are given for ruling out arbitrage. It is then shown that these conditions entail that pricing functions associated with particular kinds of betting contracts must turn out to be probability functions. (shrink)

This paper traces the recent debate over the legitimacy of maturity mismatching and fractional reserve banking. It shows that there is common ground between Bagus and Howden :399–406, 2009, 106:295–300, 2012) on the one hand and Evans on the other regarding contractual arrangements that lead to fractional reserve banking, while both agree that fractional reserve banking that arises out of a bailment or storage contract constitutes fraud. Block and Barnett :711–716, 2009, 100:229–238, 2011) stress the illegitimacy of fractional (...) reserve banking for creating more money substitutes than there is actual money. While it is true that fractional reserve banks are capable of creating money, this activity still cannot be regarded as fraudulent using a common law definition of fraud for it can only take place with requisite client collaboration that makes it impossible to identify a victim. (shrink)

Avatar is a high‐styled entertainment, a nature narrative, an environmental allegory, a reflection on religion and spirituality, a global warning, a love story, and more. It illustrates two different views of individualism and communitarianism. Contracts and investments are important catalysts for the action of avatar. The avatar program also owes its existence on pandora to what comes down to a contractual arrangement with the RDA. It offers a cautionary tale to remind that a selfish individualist ethics can blind the (...) importance of other people, of communities, and of the living world of which are a part, even to the point of threatening their very survival. The avatar also reminds that the moral community need not be restricted to a single race or even to a single species. (shrink)

Many theorists have recently observed that the response to the same-sex marriage controversy most congruent with basic liberal principles is neither the retention of the institution of marriage in its present form, nor its extension so as to include same-sex unions along with heterosexual ones, but rather the ‘dis-establishment’ of marriage. Less commonly observed, however, is the fact that there are two competing models for how the state might effect a regime of disestablished marriage. On the one hand, there is (...) a ‘deflationary’ approach, on which the state ceases to confer marital status, but does remain in the status-conferring business. On this approach, the state would still bestow a certain ‘thinner’, more ‘neutral’ legal status – as it does when it creates civil unions, for instance. Call this the ‘Status Model’ of disestablished marriage. On the other hand, there is an ‘eliminativist’ approach, on which the state ceases to confer any sort of status at all – not even the thin or neutral status of ‘civilly-unioned’. There simply are no registered domestic partnerships. What there is, is contract law, and individuals entering into contracts for life-partnership – contractual arrangements which might assume any of a wide variety of forms. Call this the ‘Contract Model’ of disestablished marriage. In this paper, I explore the merits of these competing models. After briefly discussing what it means to speak of ‘disestablishing marriage’, and examining the case for disestablishment, I proceed to consider the advantages and disadvantages of each model. My tentative conclusion is that the Contract Model is the one that best instantiates cardinal liberal virtues. (shrink)

In 2004, the U.K. parliament passed the Civil Partnership Act which provides a scheme to enable same-sex couples to obtain formal recognition of their relationships through the registration of a civil partnership. When the Civil Partnership Bill was making its way through parliament, attempts were made in the House of Lords to derail the Bill through amendments seeking to extend the Bill to certain familial relationships of care and support. In order to counter these attempts and to facilitate the removal (...) of the amendments, the government gave the assurance that the matter of the economically vulnerable cohabitant would be referred back to the Law Commission for England and Wales for review. Consequently, in July 2005, the Law Commission commenced its project on cohabitation. This paper seeks to examine models of reform (such as the one proposed by the Law Society of England and Wales in its 2002 Cohabitation report) as well as those introduced in other Commonwealth countries. The aim is to identify some of the crucial questions that the Law Commission will need to give careful consideration to if they are to make recommendations that will provide a more radical approach to this area of the law, rather than adopt the more conservative approach of including cohabitation in ‘piggy back’ mode on the marriage model. (shrink)

Skuteczna, aktywna polityka rynku pracy Andrzej Klimczuk In Adam Tomanek (ed.), Flexicurity W Wymiarze Regionalnym . Raport Z Badań. Izba Rzemieślnicza I Przedsiȩbiorczości W Białymstoku. pp. 100--121 (2011) .

Elastyczne i przewidywalne warunki umów .

In lieu of an abstract, here is a brief excerpt of the content:Greek FriendshipDavid KonstanIn this paper I examine the nomenclature and conception of friendship among the ancient Greeks. More specifically, I challenge the current consensus that the classical Greek notion of friendship was wider or more inclusive than the modern. My focus will be on the significance of the terms philos (as noun) and philia, which do not, as is commonly assumed, denote the same range of relations. I shall (...) argue that philos in the classical period denotes something very like the modern sense of "friend," while philia refers to affectionate sentiments (not objective obligations) characteristic of a wide range of relationships, not excluding friendship proper. I examine evidence drawn primarily from Aristotle, Xenophon and the Greek orators in order to exhibit the uses of the nouns philos and philia, and look also at Sophocles' Antigone, since a number of recent interpretations of this play presuppose that kin are philoi and that philia represents the objective bond among them.In his recent book on Athenian finance, Paul Millett writes: "It is true that from the viewpoint of comparative sociology, to say nothing of our own experience, the all-inclusive quality of Greek friendship is anomalous."1 Millett cites the article on "Friendship" by Odd Ramsøy for the generalization that "most other important social relationships exclude friendship," which "tends to be incompatible with such relationships as those of mother and child, lovers, and employer and employee."2 Millett goes on to observe that Greek usage, as illustrated for example by Aristotle, admits of the term philos or "friend" in respect to "parents, brothers, benefactors, fellow-tribesmen and fellow-citizens," as well as to "husbands and wives, fellow-voyagers, comrades-in-arms, guest-friends, and cousins," and he adds that "perhaps the clearest illustration comes from the Memorabilia of Xenophon, plotting the extension of philia both inside and outside the family circle." [End Page 71]Millett expresses with exemplary clarity and a wealth of citations a point of view shared by virtually every scholar writing these days on Greek friendship. For example, Mary Whitlock Blundell, in her study of Sophoclean ethics, classifies Greek conceptions of friendship under three main heads or circles: the family, fellow-citizens, and "the third main group of philoi" that "approximates most closely to modern conceptions of a friend."3 Barry Strauss, in his history of fourth-century Athens, writes: "Friendship was of fundamental importance in Athenian society. Second only to parent-child and kinship ties in the intensity of its obligations, friendship is central to the thought of many ancient Greek writers."4 This seems to promise a distinction between kinship and friendship, but in the next sentence Strauss continues: "Philia, as the Greeks called it, is much broader in its meaning than the English 'friendship,'" and he goes on to quote with approval N. R. E. Fisher, who asserts: "Linguistically, the most general word for what belongs to a person, in his group or on his side, is philos (noun philia), which we usually translate 'friend,' but which, when applied to persons, systematically spans both kin and non-kin, those with whom one has links of mutual aid and benevolence."5 Sally Humphreys states the matter succinctly in a footnote:" Philos can refer both to kin and to friends."6 The philosophers too are in agreement on this point. Thus, Michael Pakaluk, in the introduction to a collection of philosophical essays on friendship, observes of Aristotle's treatise: "Religious societies, familial bonds, affinities among travellers, civility among citizens, arrangements of hospitality, and tacit contractual agreements-all of these are woven into his account of friendship."7The Greeks, then, are said not to have discriminated linguistically between a wide range of associations that we, and most societies, regard as categorically distinct. Friends are assimilated to relatives, fellow citizens, and just about anyone else with whom one shares some common experience or interest. This view, however, is inexact and misleading as stated. I shall argue that in Greek usage of the classical period and later, [End Page 72] just as in English today, kin and fellow citizens were not normally spoken of as friends or philoi, and that the categories were in fact distinct and... (shrink)

The purpose is to stage a dialogue between a pre-liberal conception of justice, represented by Aristotle as revived with the help of ideas of Lucas, Jouvenel and G. A. Cohen, and a liberal conception, as founded in Kant and refurbished, renewed and worked out in A Theory of Justice by John Rawls. Among the questions at issue are the roles of habit, disposition and formation; the nature of the dependency between the justice of the citizen of a polity and the (...) justice of the constitutional arrangements of the polity; the superior prospects of a piecemeal, bottom-up approach to justice or of a top-down, contractual approach; the remedial/restorative conception of justice versus more than merely remedial/restorative conceptions; tolerance of contingency; the propensity of liberal regimes to replace by managerial procedures more and more of the arrangements that previously entrusted important matters to the practical judgement of individuals; the multiplicity and diversity of the neo-Aristotelian requisites for a good polity versus the rather simpler demands of liberalism, which relate mostly to legitimacy; the idea of equality proper to a just and good polity; the closed, open enough, or completely open character of such a polity. (shrink)

This paper considers what realist social theory can add to existing knowledge about black and minority ethnic entrepreneurs and outlines a methodology for exploring the role of the BME entrepreneur. For this group, embodied signifiers such as skills and abilities, cultural characteristics, social norms, and value systems combine with structural antecedents, such as financial, contractual, professional, and other national and regional institutional arrangements to create impediments on the progression of BME enterprises. Understanding such complex social arrangements presents (...) significant ontological and methodological challenges. We argue that previous research has failed to capture the richness of the forms of agency BME entrepreneurs display and that, as a consequence, RST has much to offer this debate. The paper ends with a discussion of the methodological implications of analysing BME entrepreneurs in terms of their social agency. (shrink)

This paper, which is based on an extensive analysis of the literature, gives a brief overview of the main ways in which solidarity has been employed in bioethical writings in the last two decades. As the vagueness of the term has been one of the main targets of critique, we propose a new approach to defining solidarity, identifying it primarily as a practice enacted at the interpersonal, communal, and contractual/legal levels. Our three-tier model of solidarity can also help to (...) explain the way in which crises of solidarity can occur, notably when formal solidaristic arrangements continue to exist despite ‘lower tiers’ of solidarity practices at inter-personal and communal levels having ‘broken away’. We hope that this contribution to the growing debate on the potential for the value of solidarity to help tackle issues in bioethics and beyond, will stimulate further discussion involving both conceptual and empirically informed perspectives. (shrink)

The purpose of this book is to compare and analyse covenantal and contractual models, which are used to arrange and order complex relationships of the business corporation. This book will show that covenant and contract are different concepts for envisioning responsible relationships, and that covenantal interpretation is superior to contractual interpretation. The difference and superiority of the covenantal model comes from its connectional understanding of human nature, the purpose of the business corporation, and moral values. Thus, this book (...) argues that business relationships based upon making a 'covenant' with others expand reasonability beyond legal contract, and integrate moral commitment and theological vision into the business realm. (shrink)

This essay will focus on the moral issues relating to surrogacy in the global context, and will critique the liberal arguments that have been offered in support of it. Liberal arguments hold sway concerning reproductive arrangements made between commissioning couples from wealthy nations and the surrogates from socioeconomically weak backgrounds that they hire to do their reproductive labor. My argument in this paper is motivated by a concern for controlling harms by putting the practice of globalized commercial surrogacy into (...) the context of care ethics. As I will argue, the unstable situations into which children of global surrogacy arrangements are born is symbolic of the crisis of care that the practice raises. Using the Baby Manji case as my touch point, I will suggest that liberalism cannot address the harms experienced by Manji and children like her who are created through the global practice of assisted reproductive technology. I will argue that, if commissioning couples consider their proposed surrogacy contracts from a care ethics point of view, they will begin to think relationally about their actions, considering the practice from an ethical lens, not just an economic or contractual one. (shrink)

This essay investigates a strand of left-republicanism that emerged in France in the late nineteenth and early twentieth centuries. The solidarists developed a distinctive theory of social property and a thorough critique of the liberal, republican, and socialist alternatives. Solidarism rests on the claim that the modern division of labor creates a social product that does not naturally belong to the individuals who control it as their private property; property, therefore, should be conceived as “common wealth,” divided into individual and (...) public shares. When the wealthy appropriate a disproportionate share, they have a quasi-contractual debt to society that they are obliged to repay. The concepts of social debt, common-wealth, reparations, and rent (“unearned increment”) played an important role in legitimizing egalitarian policies, but they have been largely forgotten today. This article resuscitates the theoretical arguments introduced by the solidarists and explains their relevance for contemporary debates about alternative economic arrangements. (shrink)

While Rawls himself put contractualism to work at the national level, his more cosmopolitan followers have argued that the full requirements of international justice can be reached only by way of a global contractualist argument. Both positions neglect a resource from within the contractualist tradition, The need for iteration of the nation-level contract gives rise to strong and reasonably definite moral requirements. A good-faith adoption of the contractual argument entails, first, a duty to assist those whose potential recourse to (...) just arrangements is blocked by tyranny or political collapse. Second, understood as a net risk-reducing project, a nation-level contract entails a duty not to impede the iterated risk-reduction projects of other national soceties. Envisaging the duty in this contractualist way avoids problems that beset both "natural duty" and "interactionist" approaches to international justice. The non-impedance requirement bears especially on international economic arrangements. The institutional representation of those affected by such arrangements would connect this abstract requirement with practical conclusions. (shrink)

The economic theory of contract is being reshaped in ways which resonate with the findings of socio-legal contract scholars and of industrial economists and sociologists in the Marshallian tradition, who emphasise the 'embeddedness' of organizations within their social and cultural environment. Contractual co-operation is seen as depending on institutional factors which serve to enhance 'trust', and arrangements which in the past were criticized as the product of collusion are being reassessed as potentially efficient responses to market failure. An (...) active debate has begun on how instruments of public policy can best be deployed to arrive at an effective balance between co-operation and competition. This affects both the competitiveness of private sector organizations and the success of deregulatory reforms in the public sphere. These issues are explored within four main areas: developments in private-sector contracting; contract and organization in the public sector; the economics of contract law; and competitiveness and competition policy. (shrink)

Consent, in terms of voluntary choice, is - or, at least, appears to be or purports to be - at the essence of contract law. Contract law, both in principle and in practice, is about allowing parties to enter arrangements on terms they choose - each party imposing obligations on itself in return for obligations another party has placed upon itself. This freedom of contract- an ideal by which there are obligations to the extent, but only to the extent, (...) freely chosen by the parties - is contrasted to the duties of criminal law and tort law, which bind all parties regardless of consent. At the same time, consent, in the robust sense expressed by the ideal of freedom of contract, is arguably absent in the vast majority of the contracts we enter these days, but its absence does little to affect the enforceability of those agreements. Consent to contractual terms often looks like consent to government: present, if at all, only under a fictional (as if) or attenuated rubric. This article explores a variety of topics relating to consent, and the role it plays in contract law doctrine and theory. The article begins by a brief examination of the nature of consent, then turns to contract doctrines that turn on the alleged absence of consent (e.g., duress and undue influence); contract rules and principles (e.g., implied terms) that turn on hypothetical consent; the challenges to consent that arise from electronic contracting and bounded rationality, and theories of contract law that emphasize consent. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Managed Health Care: New Ethical Issues for All*Martina Darragh (bio) and Pat Milmoe McCarrick (bio)Changes in the way that health care is perceived, delivered, and financed have occurred rapidly in a relatively short time span. The 50-year period since World War II encompasses enormous growth in medical technology, soaring health care costs, and significant fragmentation of the two-party patient- physician relationship. This relationship first grew to include the third-party (...) payer, the health insurance industry, and now “with great speed and relatively little public awareness, a significant change has occurred in the way some decisions are made about a patient’s medical care” (III, Institute of Medicine 1989).The new means of providing health care bring an increasing number of parties into clinical decision-making processes. With this change, ethical issues that once concerned only health care professionals, the physician or the nurse, have expanded to include the patient and the groups who “manage” care—e.g., health maintenance organizations (HMOs), preferred provider organizations (PPOs), point of service groups (POSs), independent practice associations (IPAs), insurance reviewers, hospital administrators, institutional managers, and, the most recent players, purchasers of group health care who base their decisions on competitive pricing.The term “managed care” refers to a variety of continually adapting and developing arrangements that involve four groups. These groups, which have been labeled by the world of business, not health, are the “consumer” (once the patient), the “provider” (the physician and other health care professionals), the “insurer” (the reimburser for any care), and the “purchaser of care” or the primary buyer of health services (the large employer organization). Capitation is a common way to pay for health services in managed care systems. A certain dollar amount is negotiated for health services for a specified number of patients whether the care is delivered or not; the provider shares with the [End Page 189] insurer any financial risk for the actual cost of care (III, Centers for Disease Control 1995).When the Clinton administration’s health care reform movement failed to gain support in the U.S. Congress, the use of managed care to control rising health care costs accelerated. The literature on managed care and its effect on the patient-physician relationship reflects this shift. During the era of health care reform, “debate centered on how managed care could control costs, on the use of technology and patient satisfaction, [and] on access and barriers to care” (IV, Emanuel and Dubler 1995). When managed care organizations began contracting with physicians to provide health care services subject to the plans’ provisions, these plans became agents in clinical decision making on a wide-spread basis. HMO enrollment grew to 51 million persons by 1994 (III, Centers for Disease Control 1995). This “corporatization” of health care has sparked a plethora of articles about the effects of the marketplace on the physician’s ability to do what is best for the patient, and on the patient’s ability to trust the physician to do so.Many authors make it clear that managed care itself is not the problem, but rather the development of for-profit managed care plans by “corporate conglomerates with billions of dollars in assets that compensate their executives as grandly as basketball players” (V, Kassirer 1995) “in a marketplace that is largely unregulated” (I, Zoloth-Dorfman and Rubin 1995). “Some, mostly older plans that were created when cost containment was an unexpected benefit rather than their central purpose, deliver high-quality care economically. Unfortunately, others cut costs by recruiting the healthiest patients, excluding the sickest, rationing care by making it inconvenient to obtain, and denying care by a variety of mechanisms” (V, Kassirer 1995).These cost-containment features now play an intimate role in clinical practice. When a managed care plan contracts with a physician, the doctor becomes a “double agent” with contractual obligations to the plan to provide a preset amount of services and professional responsibilities to each patient to authorize necessary treatment (V, Angell 1993). This duality can undermine the physician’s fiduciary responsibility to the patient wherein the physician “has power over the affairs of [the patient]...and is required by law to act on that person’s... (shrink)

With “consumer demand” credited with driving major changes in the food industry related to food quality, safety, environmental, and social concerns, the contemporary politics of food has become characterized by a variety of attempts to redefine food consumption as an expression of citizenship that speaks of collective rights and responsibilities. Neoliberal political orthodoxy constructs such citizenship in terms of the ability of individuals to monitor and regulate their own behavior as entrepreneurs and as consumers. By contrast, many proponents of alternative (...) food networks promote the idea that food citizenship is expressed through participation in social arrangements based on solidarity and coordinated action rather than on contractual and commoditized relationships between so-called “producers” and “consumers.” This paper thus focuses its analysis on the strategies used to mobilize people as consumers of particular products and the ways, in turn, in which people use their consumption choices as expressions of social agency or citizenship. In particular, the paper examines how the marketing, pricing, and distribution of foods interact with food standards to enable and constrain specific expressions of food citizenship. It is argued that narrow and stereotypical constructions of the “ethical consumer” help to limit the access of particular people and environmental values, such as biodiversity, to the ethical marketplace. (shrink)

Until recently, as market forces gradually prevailed over government intervention, the contractarian view had emerged as a preferred method of economic governance due to its attractiveness for business. Following the recent collapse of financial markets and the resulting recession, however, this structural form is now being called into question as the calls for more regulation and government intervention increase. In this context, this article revisits the law versus contract debate in the field of corporate law and governance. Following a theoretical (...) framework utilizing elements of game and resource-based theory of the firm, the company is envisaged as a central counterparty in repeated bargains with its stakeholders. It is shown that power dynamics, which are inherent in the repeated bargains between stakeholders and the company, are prone to imbalance rather than balance by causing cumulative increases in the relative power of stronger parties and vicious spirals of relative power loss for weaker ones. This cumulative power imbalance is then reflected in the organizational rent appropriation process, as weaker parties are eventually expropriated by stronger ones. It is therefore argued that since the contractual model is inherently prone to instability, mandatory power-balancing rules are necessary. Such (re)balancing regulation, however, would need to follow a systemic approach because stakeholder and company power is drawn from, and affected by numerous structural arrangements in the legal and economic system. (shrink)

Dr Robert Chambers has recently argued that a loan on Quistclose terms does not actually create a trust, but rather the borrower receives the entire beneficial ownership of the funds subject only to a contractual right (enforceable by an injunction) on the part of the lender to prevent the loan being employed other than for the specified purpose. Chambers' approach, or at least something broadly similar, has received some obiter support from Potter LJ in Twinsectra Ltd v. Yardley. This (...) article maintains that Chambers' analysis leaves unresolved a number of significant issues. It does not explain Potter LJ's emphasis on the requirement to segregate the Quistclose funds from the borrower's general assets. Similarly, it seems not applicable outside the typical Quistclose scenario; for instance, where the funds are wrongfully transferred to a third party before the failure of the specified purpose, where the Quistclose arrangement arises outside a contractual setting, and where the dispute involves a third party holding a (pre‐existing) charge. Accordingly, it is suggested that it would be quite premature to conclude that more orthodox explanations of the Quistclose trust should now be jettisoned. (shrink)

The contractual liability exposure of members of unincorporated non-profit undertakings has not been deeply investigated by the courts. The basic principle is clear enough - contractual liability depends on whether or not a member participates in managing the affairs of the association. This is framed by the judges as a question of agency. What has remained unstated is the rationale for this approach. The author examines the English, Canadian, and American authorities in an effort to clarify the operation (...) of the agency analysis and to justify the liability assignments it produces. (shrink)

As an employee, a sports doctor has obligations to their employer, but also professional and widely accepted obligations of a doctor to the patient . The conflict is evident when sports doctors are asked by an athlete to keep personal health information confidential from the coach and team management, and yet both doctor and athlete have employment contracts specifying that such information shall be shared. Recent research in New Zealand shows that despite the presence of an employment contract, there appears (...) to be a wide range of behaviours among sports doctors when an athlete requests that information about them be kept from team management. Many seem willing to honour requests to keep health information about the athlete confidential, thereby being in breach of the employment contract, while others insist on informing team management against the wishes of the athlete. There are a number of potential solutions to this dilemma from forcing doctors to meet their contractual obligations, to limiting the expectations of the employment contract. This paper suggests that at times it may be appropriate to do both, making the position of the doctor clearer and supporting the ability of this group to resist pressure by coaches and management through having a robust code of ethics. (shrink)

Recent archaeological discoveries show ancient, and particularly Near Eastern society to have been supremely contractual, while Mediterranean society was historically characterized by strong family structures, challenging the 19th century evolutionary Status-to-Contract canon.

Beyond Contractual Morality looks at current debates over the meaning of liberalism by reexamining their roots in eighteenth-century texts, which demonstrate ...

This article challenges the generally accepted dogma that reliance is an essential ingredient in contractual formation. We argue that this view has resulted from an erroneous interpretation of the relevant case law, failure to cite contrary authority, and the elevation of often oblique judicial references to the need for reliance to the status of fundamental contractual principle. Contractual theory and clear policy reasons support our position that in English law a contractual obligation subsists when a person, (...) knowing of a promise, performs the stipulated act (or gives the promise) requested by the promisor, even though that person has not relied on the promise. (shrink)

This paper focuses on the role of contract as a governance mechanism in contemporary economic and social relations, exploring this theme in the context of recent writing on contract and contracting within law and other disciplines. The trends towards both outsourcing by private firms and privatization of public services have increased the importance of contract as an instrument of market and quasi-market exchange. Such organizational developments have been accompanied by institutional changes in the way in which business relationships are regulated (...) through legal and extralegal norms and other constraints in the contractual environment. Contract is also being deployed increasingly as an instrument of regulation of social relations between the state and citizens in the fields of welfare, education and criminal justice. Following Macneil, the paper develops a methodology for assessing the quality of different types of relationship—between buyers and sellers, purchasers and providers, providers and consumers, regulators and regulatees, government and governed, and state agencies and citizens—according to the relationality of «contract» norms. Drawing on theories of responsive regulation, the paper explores the institutional and organizational conditions of responsive contractual governance in selected areas of market, quasi-market, and social relations. The underlying argument is that the core values of democracy, participation, and citizenship have a central part to play in the determination of responsive regulatory policy. We should aim to increase the level of public participation in decisions concerning organizational and institutional frameworks, so that citizen and consumer interests may adequately be represented in the determination of optimal forms of governance. (shrink)

In this Response, I will investigate the foundations of both shared and unshared meaning in legal communication. Part I takes a step back from contractual communication and offers a preliminary sketch of a general model of legal communication; the sketch draws on speech act theory and the work of Paul Grice, extending and modifying many of the insights developed by Kar and Radin. Part II turns to contractual communication, differentiating distinct “situations of contractual communication” and interrogating Kar (...) and Radin’s Shared Meaning Analysis. Part III interrogates Kar and Radin’s distinction between “contract” and “pseudo-contract.” The conclusion of the Response briefly reflects on the significance of Kar and Radin’s project. (shrink)

Contemporary society is in the grip of contractual thinking. Realities are interpreted in contractual terms, and goals are formulated in terms of rational contracts. The leading current conceptions of rationality begin with assumptions that human beings are independent, self-interested or mutually disinterested, individuals; they then typically argue that it is often rational for human beings to enter into contractual relationships with each other.

The author investigates the necessity of fault as the prerequisite of contractual civil liability. The author makes the conclusion that Lithuanian law, following most of the countries belonging to the civil law tradition and contrary to the common law systems, as well as Vienna convention, UNIDROIT principles, PECL and DCFR, begins with the theory that fault is a requirement for contractual liability. Strict liability in Lithuanian law is the exception of this general rule. Nevertheless, the author argues that (...) the general rule is subject to important exceptions, and the practical importance of these exceptions is as great as the cases falling within the general rule. In case of no agreement of the parties or any provision of law regarding fault as the necessary prerequisite for contractual liability, in Lithuania, similar to France, the distinction between the obligations to produce a given result and the obligations to use reasonable care is essential: according to Article 6.200(4) of the Lithuanian Civil Code (hereinafter – the CC), a party in breach of an obligation to use best efforts is liable for fault. (shrink)

This paper investigates the idea of clinical autonomy. Whilst there is a considerable literature on moral autonomy there is very little on clinical autonomy except as a sociological phenomenon. Using the results of interviews with Community Psychiatric Nurses in England, the three main theories that they have about clinical autonomy are examined. It is argued that there are substantial problems with these theories and an alternative way of understanding clinical autonomy is proposed, the idea of contractual space.

In contrast to eminent historical philosophers, almost all contemporary philosophers maintain that slavery is impermissible. In the enthusiasm of the Enlightenment, a number of arguments gained currency which were intended to show that contractual slavery is not merely impermissible but impossible. Those arguments are influential today in moral, legal and political philosophy, even in discussions that go beyond the issue of contractual slavery. I explain what slavery is, giving historical and other illustrations. I examine the arguments for the (...) impossibility of contractual slavery propounded in the Enlightenment and their offspring expounded in recent writings, including those by Barnett, Cassirer, Ellerman, Rawls, Roberts-Thomson, Satz and Steiner. I show that they involve confusions between abilities and rights, free will and freedom, directing and doing, what may be true sequentially and what may be true simultaneously, default rights and universal rights, impermissibility and impossibility, and metaphorical and literal uses of language. (shrink)

The reductionist view of contractual phenomenon, typical of civil codes and classical contract law, is a result of a blur that, overestimating the voluntary agreement, undervalues the exchange. Trying to show the partial and inadequate character of that vision of contract law, contextualists or relationists proposals have emerged, focusing on the defense of the relational contract model. These theories suggest relational justice as a new paradigm. It transfers the relational approach of sociology to law, and incorporates the analysis of (...) plural economic reciprocity. Relational justice is formulated as a theory of justice, whose three elements offer a new theoretical framework where balances and imbalances that have been showing the legal contractual reality through out history can be contextualized. (shrink)

This paper is about the remedy of disgorgement for breach of contract. In it I argue for two conclusions. I first argue that, prima facie at least, disgorgement damages for breach of contract present something of a puzzle. But second, I argue that if we pay close attention to the notion of contractual performance, this puzzle can be resolved in a way that is consistent with principles of corrective justice. In particular, I suggest that even if a contract gives (...) the promisee a right to only the promisor's performance of the contract, such a right can sometimes entail the acquisition by the promisee of certain rights of ownership. And in situations in which such rights are acquired, the disappointed promisee is entitled to the gains realized by the promisor in breach of contract by reason of the fact that such gains are something to which the promisee has an antecedent right. (shrink)

Developments in contract law over the past century have led to the proliferation of interpretive theories according to which contract law is no longer a sui generisi legal branch. It is widely accepted that if there is a sui generis contractual obligation, it must somehow be based on the wills of the parties. But a new orthodoxy in contract theory claims that the role of the will of the parties in contract law has been progressively shrinking due to judicial (...) doctrines within the law of contract and also to general statutory provisions. It is no longer apparent that there is any interesting sense in which contractual liability is based on the will of the parties. Hence, so it is claimed, contract law has lost its sui generis nature. The article challenges this new orthodoxy. But rather than reverting to the old orthodoxy—the will theory of contracts (or its contemporary rendition, contract as promise)—it argues that we should resist being forced to choose between them. The article argues that the purpose of contractual liability is to support the practice of voluntary obligations. This view preserves an important connection between contractual liability and voluntary undertakings and meets the objections that beset the will theory. (shrink)