Opt-out policies capacity to increase organ donors is limited

Objectives: To increase post-mortem organ donation rates, several countries are adopting an opt-out (presumed consent) policy, meaning that individuals are deemed donors unless they expressly refused so. However, studies on the relative impact of opt-in or opt-out on deceased organ donation rates are inconclusive. Although opt-out countries tend to have higher donation rates, there is no conclusive evidence that this is caused by the policy itself. The main objective of this study is to better assess the impact of consent policies when considering the role of the family in decision-making. Design: By systematically combining the three components of the decision-making process --the default rule, the deceaseds preferences, and the family s preferences,-- we identify all situations that affect the retrieval outcome under opt-in and opt-out policies. Then, by gathering empirical data from a wide array of countries, we estimate the relative frequency of these situations. Main outcome measures: We measure the relative impact that opt-in and opt-out policies have per se on post-mortem organ retrieval. Results: Our analysis shows that opt-in and opt-out have strictly identical outcomes in eight out of nine situations. These policies only differ when neither the deceased nor the family have expressed a preference and defaults therefore apply. The actual impact of consent policies is typically circumscribed to a range of 0% to 5% of all opportunities for organ retrieval. Conclusions: This study may warn contemporary organ retrieval policymakers that, by emphasizing the need to introduce presumed consent, they might be overestimating the influence of policy defaults and underestimating the power granted to families in expressing their preferences and making decisions about organ donation. Governments should reassess the opportunity and effectiveness of adopting opt-out policies for organ retrieval.

Personalizing Rules by Age

To complete the demonstration of personalized law in action, this chapter focuses on the inputs used to tailor the individualized commands. One input that is likely to feature in the personalization of many rules is age. Age is informative because it is often correlated with personal attributes that matter to achieving the goals of a law. Preferences, cognition, judgment, experience, and physical ability—all vary with age. Young age is a factor in the denial of legal capacity and in the conferral of various paternalistic protections, whereas old age represents changing needs, capacities, and entitlements. Under personalized law, age would be an input affecting legal commands that are currently age-invariant, such as the intestate succession default rule or speed limit laws. In addition, age of capacity laws, which are currently used to regulate entry into various activities, would use different age cutoffs for different people.

Why Not-doings are Special

This chapter discusses criminal liability for omissions. The criminal law draws a basic distinction between things done and things not done. Its default rule is that one is not accountable for failing to prevent something that it would be a crime to bring about by a positive act. There are, of course, exceptions to the default rule, in as much as the law often imposes distinct duties to intervene and prevent harm. However, the concern in this chapter is with why the default rule itself should exist. One reason is that not-doings are typically less culpable, and the law has good reasons to acknowledge this by means of its default rule requiring a positive act. More importantly, though, the doing/not-doing distinction matters for reasons of ascriptive responsibility. Distinct duties are, first and foremost, conduits to holding the defendant accountable for an event or outcome. Absent such a duty, a not-doer is prima facie not accountable for the consequences of her deed: whereas a doer is. The chapter looks first at the nature of not-doings and omissions generally; considers whether not-doings really are less culpable; then investigates the argument from ascriptive responsibility for differentiating their treatment.

Toward a Normative Model of Meaningful Human Control over Weapons Systems

The notion of meaningful human control (MHC) has gathered overwhelming consensus and interest in the autonomous weapons systems (AWS) debate. By shifting the focus of this debate to MHC, one sidesteps recalcitrant definitional issues about the autonomy of weapons systems and profitably moves the normative discussion forward. Some delegations participating in discussions at the Group of Governmental Experts on Lethal Autonomous Weapons Systems meetings endorsed the notion of MHC with the proviso that one size of human control does not fit all weapons systems and uses thereof. Building on this broad suggestion, we propose a “differentiated”—but also “principled” and “prudential”—framework for MHC over weapons systems. The need for a differentiated approach—namely, an approach acknowledging that the extent of normatively required human control depends on the kind of weapons systems used and contexts of their use—is supported by highlighting major drawbacks of proposed uniform solutions. Within the wide space of differentiated MHC profiles, distinctive ethical and legal reasons are offered for principled solutions that invariably assign to humans the following control roles: (1) “fail-safe actor,” contributing to preventing the weapon's action from resulting in indiscriminate attacks in breach of international humanitarian law; (2) “accountability attractor,” securing legal conditions for international criminal law (ICL) responsibility ascriptions; and (3) “moral agency enactor,” ensuring that decisions affecting the life, physical integrity, and property of people involved in armed conflicts be exclusively taken by moral agents, thereby alleviating the human dignity concerns associated with the autonomous performance of targeting decisions. And the prudential character of our framework is expressed by means of a rule, imposing by default the more stringent levels of human control on weapons targeting. The default rule is motivated by epistemic uncertainties about the behaviors of AWS. Designated exceptions to this rule are admitted only in the framework of an international agreement among states, which expresses the shared conviction that lower levels of human control suffice to preserve the fail-safe actor, accountability attractor, and moral agency enactor requirements on those explicitly listed exceptions. Finally, we maintain that this framework affords an appropriate normative basis for both national arms review policies and binding international regulations on human control of weapons systems.

Limits of Personalization of Default Rules

The ‘personalization of the law,’ based on new technological possibilities such as algorithmic analysis of Big Data, is said to be the wave of the future. Especially default rules seem to be particularly apt for personalization, because they are – at first glance – supposed to mirror what the parties would have wanted. This article aims to unveil the limits of preference-based personalization of default rules. In the first part, I attack default rule personalization on theoretical grounds. I analyze the theoretical underpinnings of default rule personalization, which I describe as ‘empirical subjectivism,’ and I challenge this position with arguments from classical and behavioral law and economics. I thereby develop the opposite explanatory model: ‘normative objectivism.’ The arguments presented also provide new insights of default rule analysis which are valid well beyond the personalization debate. The ‘default rule paradox,’ ‘pushing vs pulling default rules,’ or the analysis of default rules as ‘property rules’ and as ‘rules of civility’ are some examples. In the second part, I attack default rule personalization on constitutional grounds with particular focus on the Constitutions of the United States and Germany, as well as the European Charter of Fundamental Rights. So far, neither default rules nor personalization have received a detailed analysis based on constitutional principles. My article provides this analysis with regard to the principles of freedom and equality. I show how personalization reduces freedom in the private and public sphere, because the so-called choice- or agency-dimension of freedom will be significantly limited. In broader terms, the paternalistic tendencies of personalization will trigger the replacement of the ‘entrepreneur’ and ‘citizen’ by the ‘consumer’ as role-model of societal organization. Economically, this development will be accompanied by a shift from capitalism to what I call ‘micro-socialism.’ With regard to the principle of equality, I analyze how personalization leads to inequality by distinguishing ‘intra-preference-classifications’ and ‘inter-preference-classifications.’ I then present justification problems, especially with regard to discriminations that trigger strict and intermediate scrutiny. Finally, I sketch out how personalization would dissolve the essence of the principle of equality and thereby trigger a shift ‘from contract to contact’ or ‘from association to accumulation,’ which is no less important than the previous societal shift ‘from status to contract’ or ‘from community to association.’ In sum, the article combines different discourses around default rules, personalization, and constitutional law, and thereby provides new insights in each of them.

10. Implied Terms

This chapter discusses implied terms. Terms may be implied into contracts from three principal sources: statute, custom, and the courts. Parliament has, on a number of occasions, implied terms into contracts. The precise reason for the implication of the term depends upon the particular statute. It may be to give effect to the presumed intention of the parties; it may be to reduce uncertainty by enacting a default rule out of which the parties can contract if they do not like the term that Parliament has seen fit to imply; or it may be to protect one party to the transaction from the superior bargaining power of the other. Terms can also be implied into contracts by custom where the custom is certain, reasonable, and notorious. Customs and usages are an important source of obligations in commercial contracts. Terms implied by the courts can be divided into two groups, namely terms implied in fact and terms implied in law. A term is implied in fact when it is implied into the contract in order to give effect to what is deemed by the court to be the unexpressed intention of the parties and is implied because it is necessary to make the contract work. Terms implied in law ‘are those terms that are consistently implied into all contracts of a particular type because of the nature of the contract, rather than the supposed intentions of the parties’.

Rinegoziazione e default rule

"Nella lunga vita di molti contratti, possono verificarsi eventi imprevisti che incrinano l’equilibrio, soprattutto economico, delle reciproche prestazioni. Il discorso intorno al diritto-dovere di rinegoziare gli accordi esposti a sopravvenienze è ormai un tema classico del diritto civile, che rispunta ciclicamente in occasione di eventi di rilevanza mondiale capaci di compromettere la tenuta di innumerevoli contratti in corso. La pandemia di COVID-19 è solo l’ultimo esempio in ordine di tempo. Questa ricerca si propone di individuare il miglior approccio giuseconomico per affrontare il dilemma della rinegoziazione, in prospettiva strutturale, cercando di coniugare le soluzioni proposte dagli interpreti del diritto civile con i contributi di analisi economica del diritto, nella prospettiva della riforma del codice civile italiano e della progressiva armonizzazione del diritto privato europeo e internazionale. In questo percorso, l’individuazione di una regola di default stabile e duratura per un contesto mutevole e multiforme è forse la contraddizione in termini che più vale la pena affrontare. Matteo de Pamphilis, dopo la laurea in Giurisprudenza e il conseguimento del dottorato di ricerca in Diritto civile nell’Università di Bologna, collabora con la stessa Alma Mater come professore a contratto e tutor didattico in materie privatistiche. Negli ultimi anni è stato docente degli insegnamenti in lingua inglese Planning and public intervention in the lifestyle and health sector e Public and private action for the development of services nel corso di laurea magistrale in Wellness culture: sport, health and tourism. È socio aggregato dell’Associazione Civilisti Italiani e svolge la professione di avvocato nel Foro di Bologna, prevalentemente nel settore civile, commerciale e concorsuale."