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For EU jurisdictions, Regulation (EU) No 1215/2012 on jurisdiction and recognition and enforcement of judgments (the Brussels I Regulation) and the 2005 Hague Choice of Court Convention (the 2005 Choice of Court Convention) are the pivotal instruments to assess “consent to jurisdiction” in a choice of court agreement. This Article examines the symmetries in both instruments. The relevant rules combine inferred consent with a residual reference to the law of the chosen court, as opposed to providing a uniform substantive standard on the notion of “consent” to jurisdiction. The practical operation of this hybrid solution is examined by reference to the relevant case law of CJEU and selected domestic courts. The Article then considers specific matters where consistency between the two regimes is uncertain. In conclusion, while alignment on consent to jurisdiction under the Brussels I Regulation and the 2005 Choice of Court Convention is desirable, it is expected that autonomous standards on consent to jurisdiction will be consolidated within the respective scopes of application of the instruments under review.
Dispute resolution provisions are routinely found in the boilerplate section of all types of contracts, ranging from negotiated paper agreements to website Terms of Service. The law permits the parties to a contract to change the default rules that would otherwise govern their transaction, including how any disputes will be resolved. The ability of the parties to change default rules demonstrates the deference of contract law to individual autonomy and private ordering. Consent is central and essential to both. Despite the legal significance of consent, its meaning is elusive. In one sense, the “meaning of consent” refers to its implications and the legal and moral consequences that derive from consent. In the other, and more complex sense, the “meaning of consent” refers to its very nature. Drawing upon my previous work on consent and contracts, this Article discusses these two meanings of consent and how they are interdependent. It will also examine consent specifically in the context of dispute resolution clauses.
This article synthesizes the insights of all contributors to the Bremen symposium and the contributions to this Special Issue, seeking to identify key themes and ideas for advancing a coherent regulatory approach to consent in dispute resolution agreements. By highlighting both shared concerns and divergent legal techniques, the project aimed at informing future scholarly and policy debates on this critical issue of contract law and private international law.
Chapter 2 theorizes the relationship between culture and politics in a manner that explains the Turkish case and can also be applied more generally. I begin by discussing scholarly approaches to the role of culture in contentious politics before offering my conceptual framework for furthering these approaches. How does culture matter in the creation of oppositional identities and political mobilization? Most often, scholars have answered this question by emphasizing structural conditions, movement frames, or personal narratives. Instead, I focus on dispositions. I draw from practice theory to rethink issues of consent and social movement resistance, and I draw from the concept of "practice" to study the processes through which powerful actors cultivate symbolic oppositions within individuals in the form of dispositions. But the implications of this process for movement mobilization have been undervalued. The chapter makes the case that shared dispositions between mobilizing agents and their constituencies produce collective practices among otherwise dispersed individuals and secure consent on the alternative cosmology. While laying the groundwork to establish specific dispositions may take quite some time, once this groundwork has been completed, mobilizing agents can more easily convince people to "hear" insurrectionary messages as well as act on them.
Clinicians navigating the legislation when working with young people and their families in the United Kingdom (UK) may need to use several relevant frameworks of legislation at the same time. This may appear complex in practice. Clinicians need to consider how a young person’s development across multiple domains, for example, cognitive, emotional, moral, social and so on, can have an impact upon their decision-making. Clinicians who work with children and young people often also work with parents or their local authority statutory equivalents, as well as other statutory and non-statutory agencies, to help find the best outcomes for children and young people (CYP). This requires good knowledge of legal frameworks, competence in working within complex multi-agency systems and being able to understand and work with different perspectives around an issue.This chapter specifically discusses aspects of the law in relation to children and adolescents (all those under 18 years) including the Human Rights Framework, Mental Capacity Act 2005, Children Act 1989 (amended 2004), Mental Health Act (amended 2007), and Criminal Justice Act (2003) within England and Wales. We have not addressed the differences in legislation in Northern Ireland or Scotland but have commented on distinct issues where relevant.
The Conclusion discusses the unsuccessful attempt by James VI and I’s government to create the “Imperial Crowne” of “Great Brittaine” out of the kingdoms of Scotland and England in 1604–08. It examines union treatises by Thomas Craig, John Hayward, and David Hume of Godscroft that struggled to reconcile sovereignty discourse’s stress on historical narrative, legalistic precedent, and jurisdictional independence with a proposed merger of equals. Indeed, in the Atlantic Archipelago only the combination of crises that resulted in the Wars of the Three Kingdoms created the circumstances for revolutionary political thought about sovereignty that dispensed with arguments from a historical sequence of precedents. In this way, the conclusion reflects on the enduring effects that conceiving sovereignty in terms of the recognition of superiority had on premodern writers despite a long series of attempts in England and Scotland to envisage political relations differently.
This chapter covers the problems with current norms in the participants we recruit for psychology experiments, and how to solve some of these problems by taking a Big Data approach. Specifically, many psychology experiments use very restricted and similar samples – such as American college students. However, this sample differs greatly from the global adult population, in many ways described here. The chapter then discusses how we can move toward more representative groups using Big Data, while also highlighting caveats that we will never be able to make a perfect sample, and sometimes we may want to intentionally restrict the people we recruit. The chapter finishes with a look at the big ethical questions surrounding participant recruitment, and discussion on imbalances in the demographics of psychology researchers themselves.
Manufacturing Dissent reveals how the early twentieth century's 'lost generation' of writers, artists, and intellectuals combatted disinformation and 'fake news.' Cultural historians, literary scholars, and those interested in the power of literature to encourage critical thought and promote democracy will find this book of particular value. The book is interdisciplinary, focusing on the rich literary and artistic period of American modernism as a new site for examining the psychology of public opinion and the role of cognition in the formation of beliefs. The emerging twentieth-century neuroscience of 'plasticity,' habit, and attention that Harvard psychologist William James helped pioneer becomes fertile ground for an experimental variety of literature that Stephanie L. Hawkins argues is 'mind science' in its own right. Writers as diverse as F. Scott Fitzgerald, Zora Neale Hurston, Ernest Hemingway, and Gertrude Stein sought a public-spirited critique of propaganda and disinformation that expresses their civic engagement in promoting democratic dissent.
The phrase “much ado about nothing” in popular discourse attempts to dispel suspicion, including in response to high-profile sexual assault allegations such as those against Harvey Weinstein. This article explores how Shakespeare’s play Much Ado About Nothing speaks to this trend. In the play, Claudio falsely accuses Hero of infidelity, abandoning her at the altar. For this play to be a comedy with a “happy” ending, Claudio must admit that he was mistaken. He discovers that consent (or, in the play’s vocabulary, “good will”) is a relational agreement between two equals, not a mediated exchange of property. Claudio’s mistake, the subject of Beatrice and Benedick’s teasing, is inherent to Weinstein’s defense arguments and other usages. Much Ado About Nothing provides a model for reforming our cultural concept of consent.
Hume criticized the idea that all legitimate government rests on consent of any sort, tacit or express. He did not deny that some governments originated that way, or that it was an admirable way. But he thought it absurd to claim that legitimate government authority is contingent upon each subject’s consent. To say that it is so is contrary to common opinion and, moreover, simply shifts the question to that of the bindingness of promises. That bindingness must rest on the idea of necessity, and so it is needlessly indirect to appeal to promises when government can be justified directly by its necessity to prosperous and secure society. Hume, however, also made a positive contribution to the social contract tradition. He described how a convention, or common practice, can coordinate expectations and behavior without the need for any express agreement or contract. Later theorists make use of Humean convention in order to connect the idea of hypothetical consent to the actual circumstances of life. In short, government is legitimate where there is a convention of conformance to a social contract that would, hypothetically, be approved by clear-minded individuals.
This essay explores a key stage in the legal history of the concepts of consent and guilt in cases of rape, namely in twelfth-century canon law in the work of Gratian and the early canonists who commented on his Decretum. It substantially revises the account that currently exists in scholarship and explains that confusion between raptus and rape and a limited read of the Decretum have combined to provide a problematic picture in which, it has been claimed, neither Gratian nor broader medieval canon law took rape seriously as an offence. The essay focuses on the underexplored Causa 32 in the Decretum and discusses how Gratian very directly addressed forced coitus in that section of his text, both condemning it and exonerating women of all guilt who are forced to have sex without their consent. Gratian and the decretists ended up changing the discourse on rape, in part through their treatment of both Lucretia of Roman legend and an early Christian martyr, Lucia. Their considerations, which intersected with theology, resulted in a legal principle that a raped wife cannot be charged with adultery. Since their considerations could also be applied to any rape victim, their work is important for the development of rape law and legal notions of consent.
Prospective consent in neonatal research poses significant challenges, particularly during urgent, time-sensitive clinical windows of study enrollment. This is especially true at referral centers for large geographic regions. A partial waiver of consent offers a potential translational science approach to enhance access to research participation in critically ill neonates. We compared enrollment rates in a study evaluating pulse oximetry accuracy across neonates with varying skin pigmentation before and after implementing a partial waiver of consent. Overall enrollment increased significantly without creating a racial disparity in enrollment, thereby improving generalizability and efficiency in neonatal clinical research.
Although choice-of-jurisdiction clauses are routinely enforced by courts in the United States, there are circumstances where they are subject to special scrutiny. One of these circumstances is when the party resisting the clause was not provided with proper notice as to the existence of the clause or the identity of the chosen jurisdiction. This Article first reviews the existing case law in this area and shows that while some U.S. courts have refused to enforce clauses for lack of notice, others do so as a matter of course. It then discusses several decisions where U.S. courts have held that notice may serve as a substitute for consent to bind parties to choice-of-jurisdiction clauses in agreements that they never signed.
This chapter explores how international law and its legitimacy could be improved and made more aligned with the demands of justice. It focuses on two types of requirements. First, there are the principles and accompanying procedures on the basis of which actors ask their agency (and their rights) to be recognized by international law and its culture of legitimacy. These principles are consent, justification, accountability, consistency, representation and participation, and non-abuse of power. Second, there are the topics around which this quest for the recognition of agency (and rights) takes place. They are better universality of international law, human rights as a benchmark of the legitimacy of sovereignty, compliance/enforcement/accountability, and human rights supported by public goods. These two kinds of requirements have been at the center of the efforts to make international law more inclusive as well as more legitimate, and they need to be taken more seriously in the future.
Political legitimacy entails a process of evaluation and eventually of judgment concerning whether or not, and to what extent, the exercise of political power (institutions, leadership, policies, and results) meets the conditions required by legitimacy. Despite the importance of the contribution of law to legitimacy, legitimacy cannot be purely and simply identified with and reduced to law. This is, in part, the case because law functions as an expression and vector of two other components of political legitimacy: values and consent. As such, this chapter is organized into three parts. First, I examine the meaning of values and consent and of their relationship in general. Second, I refer to the challenges that can be associated with values and consent. Third, I show how values and consent, provided that they are not the captives of these challenges, can operate as sources and criteria of evaluation and judgment of political legitimacy.
Electroconvulsive therapy (ECT) is often used to treat severe mental disorders in individuals with impaired capacity to consent to the treatment. Little is known about how different types of electrode placement are used in consensual and nonconsensual ECT.
Aims
To investigate whether there was an association between ECT consent status and electrode placement, given that ECT electrode placement affects efficacy and cognitive outcomes.
Method
Using a statewide database across 3 years in Victoria, Australia, we performed chi-squared tests to determine whether consent status (consensual versus nonconsensual) was associated with particular electrode placements. A three-way log–linear analysis was then conducted to examine whether age, gender, level of education and psychiatric diagnosis influenced the relationship between consent status and electrode placement. Given the comparable cognitive outcomes of right unilateral and bifrontal ECT, these electrode placements were combined in the analysis.
Results
In total, 3882 participants received ECT in the Victorian public health service during the study period. In the nonconsensual ECT group, 722 of 1576 individuals (45.81%) received bitemporal ECT, compared with 555 of 2306 (24.06%) in the consensual group (χ2 = 200.53; P < 0.0001; odds ratio: 2.6673, 95% CI: 2.3244–3.0608). This association remained significant after adjustment for gender, age, level of education and diagnosis.
Conclusion
Significantly more participants in the nonconsensual ECT group received bitemporal ECT rather than right unilateral or bifrontal ECT compared with those in the consensual group. As bitemporal ECT is associated with more cognitive impairment, this choice of electrode placement in vulnerable patients who lack capacity to consent raises ethical considerations in the practice of ECT.
Recent empirical work demonstrates that some instances of material deception are perceived by ordinary people as consent-defeating, whereas other instances are not. One hypothesized account of these divergent lay intuitions draws on the notion of “essence”: Roughly speaking, lies that pertain to the “core” or “nature” of a consented-to act are perceived as precluding consent, whereas lies that pertain to features that are “nonessential” or “collateral” to the act are perceived as compatible with consent. To assess this hypothesized account, an independent measure of “essence” – one that does not rely with problematic circularity on notions of consent – is needed. This chapter draws on an emerging cognitive science literature that deploys linguistic probes to investigate how people intuitively represent human action. Here, we will consider two such probes, the “by” test and the “basically doing” test, and observe that whereas the former predicts judgments of consent, the latter does not.
We are all parties to a social contract and obligated under it. Or is this mere fiction? How is such an agreement possible in a society riven by deep moral disagreement? William Edmundson explains the social-contract tradition from its beginnings in the English Revolution, through Hobbes, Locke, and Rousseau to its culmination in the work of John Rawls. The idea that legitimate government rests on the consent of free equals took shape in the seventeenth century and was developed in the eighteenth but fell into disuse in the nineteenth century even as democracy, toleration, and limited government gained ground. Edmundson shows how Rawls revived the idea of a social contract in the mid-twentieth century to secure these gains, as the then-dominant moral theories, such as utilitarianism, could not. The book also defends Rawls's conviction that political equality is integral to the idea of reciprocity at the heart of the tradition.
What makes a constitution legitimate? Models grounded in consent, right procedure, or necessary and sufficient justice conditions capture powerful intuitions, but face equally powerful problems: These models generate paradoxes and infinite regress, and their static character ignores legitimacy’s dynamism. Moreover, debates around constitutional interpretation – originalism, living tree, or common good oriented - demonstrate the permanent space between a (constitutional) rule and its application. These debates leave mysterious how legitimacy, once in a constitution, ever gets out. But these issues resolve if we understand legitimacy as something functional, not substantive. Like a currency, I suggest, it can be drawn from diverse (normative and symbolic) sources, banked (in constitutions), and later withdrawn and spent (on political endeavours). This model honours normative intuitions, while escaping puzzles and paradoxes. Moreover, since a constitution’s legitimacy ‘holdings’ can fluctuate with political skill and circumstance, this model capture’s legitimacy’s dynamism. Such a functional model bridges the empirical and normative study of legitimacy, and it may deepen empirical understanding of normativity’s role in regime stability and constitutional change.