A normative approach to the criminalisation of cartel activity

Although cartel behaviour is almost universally (and rightly) condemned, it is not clear why cartel participants deserve the full wrath of the criminal law and its associated punishment. To fill this void, I develop a normative (or principled) justification for the criminalisation of conduct characteristic of ‘hard core’ cartels. The paper opens with a brief consideration of the rhetoric commonly used to denounce cartel activity, eg that it ‘steals from’ or ‘robs’ consumers. To put the discussion in context, a brief definition of ‘hard core’ cartel behaviour is provided and the harms associated with this activity are identified. These are: welfare losses in the form of appropriation (from consumer to producer) of consumer surplus, the creation of deadweight loss to the economy, the creation of productive inefficiency (hindering innovation of both products and processes), and the creation of so-called X-inefficiency. As not all activities which cause harm ought to be criminalised, a theory as to why certain harms in a liberal society can be criminalised is developed. It is based on JS Mill's harm to others principle (as refined by Feinberg) and on a choice of social institutions using Rawls's ‘veil of ignorance.’ The theory is centred on the value of individual choice in securing one's own well-being, with the market as an indispensable instrument for this. But as applied to the harm associated with cartel conduct, this theory shows that none of the earlier mentioned problems associated with this activity provide sufficient justification for criminalisation. However, as the harm from hard core cartel activity strikes at an important institution which permits an individual's ability to secure their own well-being in a liberal society, criminalisation of hard core cartel behaviour can have its normative justification on this basis.

Regularized Online Mixture of Gaussians for Background Subtraction

Mixture of Gaussians (MoG) modelling [13] is a popular approach to background subtraction in video sequences. Although the algorithm shows good empirical performance, it lacks theoretical justification. In this paper, we give a justification for it from an online stochastic expectation maximization (EM) viewpoint and extend it to a general framework of regularized online classification EM for MoG with guaranteed convergence. By choosing a special regularization function, l1 norm, we derived a new set of updating equations for l1 regularized online MoG. It is shown empirically that l1 regularized online MoG converge faster than the original online MoG .

Corporate Governance as a School of Social Reform

In this paper, I present a vision of the corporation as a moral person. I point to “the separation of ownership and control” as a moment when the corporation broke away from the moral lives of ownermanagers. I then draw out the manner in which we can speak of the company as a moral person. Finally, through a discussion of social reporting in two British banks, I point to a shift in how this moral personhood is articulated, with the rise of corporate governance—or doing business well—as its own foundation of corporate responsibility. I propose a view of corporate responsibility as a “transmission mechanism” for the company’s role in moral life, situated in the broader social conception of “moral economy.” This viewpoint sets out landscapes of legitimation and justification through which the ties that underpin economic life are founded

Diagnosing diabetes mellitus - Do we need new criteria?

The current classification and diagnostic criteria for diabetes mellitus were introduced by the United States National Data Group in 1979 and endorsed by the World Health Organization in 1980, with modifications in 1985 and 1994. The criteria, chosen to reflect the risk of complications, were the synthesis of considerable thought and expertise and represented a consensus which, it was hoped, would prove helpful to all those involved with diabetes practising clinician, research scientist and epidemiologist alike. The inconvenience, variability and nonphysiological nature of the oral glucose tolerance test (OGTT) are well-recognised. In spite of these limitations the 2-h post-load plasma glucose has remained the standard against which all other tests have been evaluated. This article reviews the original justification for the OGTT, and in the light of more recent epidemiological research seeks to place the current diagnostic criteria for diabetes into a pathophysiological, diagnostic and prognostic perspective.

Landmark Cases in Property Law

This book explores the development of basic principles of property law in leading cases. Each paper considers a case on land, personal property or intangibles, discussing what that case contributes to the dominant themes of property jurisprudence - how are property rights acquired? What is the content of property rights? What are the limits or boundaries of property? How are property rights extinguished? Individually and collectively, the papers identify a number of important themes for the doctrinal development of property institutions and their broader justification. These themes include: the obscure and incremental development of seemingly foundational principles, the role of instrumentalism in property reasoning, the influence of the law of tort on the scope of property doctrines, and the impact of Roman legal reasoning on the common law of property. One or more of these themes (and others) is revealed through careful case analysis in each paper and they are collected and critically explored in the editors' introduction. This makes for a coherent and provocative collection.

Suspected giant cell arteritis:A study of referrals for temporal artery biopsy

Background: The purpose of this study is to describe the nature of cases undergoing temporal artery biopsy (TAB) for suspected giant cell arteritis (GCA). Methods: A retrospective review of case notes was undertaken for all patients on whom ophthalmologists had performed TAB in 2 teaching hospitals between 1995 and 2001. Presenting symptoms, referring specialty, TAB result, treatment, and discharge diagnosis were recorded. Results: Ophthalmologists performed TAB on 110 patients for suspected GCA. A variety of specialties referred patients to ophthalmology for TAB; presenting symptoms varied with referral source. Of the 110 TABs, 21 (19%) were reported as positive for GCA, 84 (76%) were negative, and 5 (4.5%) were reported as inadequate. The symptoms most commonly associated with a positive TAB were visual disturbance (15/21) and headache (15/21).The odds ratios for having a positive TAB result rather than a negative result were 1.0 for the presence of headache, 4.1 for visual disturbance, and 6.7 for jaw claudication. Interpretation: Physicians were faced with a different population of GCA suspects than ophthalmologists. While physicians should be alert to the significance of visual symptoms or jaw claudication, ophthalmologists should be ready to facilitate prompt TABs when appropriate. TAB should be performed promptly and an adequate length of artery taken for biopsy. An argument can be made that TAB is not needed in cases of suspected GCA. However, a positive result provides firm justification for the use of steroids. We feel that TAB has a useful role and we make reference to methods to maximize its usefulness.

Political Liberalism, Free Speech and Public Reason

In this paper, I critically assess John Rawls' repeated claim that the duty of civility is only a moral duty and should not be enforced by law. In the first part of the paper, I examine and reject the view that Rawls' position may be due to the practical difficulties that the legal enforcement of the duty of civility might entail. I thus claim that Rawls' position must be driven by deeper normative reasons grounded in a conception of free speech. In the second part of the paper, I therefore examine various arguments for free speech and critically assess whether they are consistent with Rawls' political liberalism. I first focus on the arguments from truth and self-fulfilment. Both arguments, I argue, rely on comprehensive doctrines and therefore cannot provide a freestanding political justification for free speech. Freedom of speech, I claim, can be justified instead on the basis of Rawls' political conception of the person and of the two moral powers. However, Rawls' wide view of public reason already allows scope for the kind of free speech necessary for the exercise of the two moral powers and therefore cannot explain Rawls' opposition to the legal enforcement of the duty of civility. Such opposition, I claim, can only be explained on the basis of a defence of unconstrained freedom of speech grounded in the ideas of democracy and political legitimacy. Yet, I conclude, while public reason and the duty of civility are essential to political liberalism, unconstrained freedom of speech is not. Rawls and political liberals could therefore renounce unconstrained freedom of speech, and endorse the legal enforcement of the duty of civility, while remaining faithful to political liberalism.

Partisanship and Public Reason

In the large body of literature concerning John Rawls’s Political Liberalism (1993) and his conception of public reason, little attention has been paid to the implications that the constraints of public reason have for partisans, i.e. citizens who participate in politics through political parties. This paper argues that even on the basis of a ‘mild’ understanding of Rawls’s conception of the constraints of public reason, which takes into account the various stipulations Rawls provided throughout his later work, when applied to partisans the constraints of public reason lose none or little of their hindering force. This seriously undermines the contribution that parties and partisans can provide to the change and the varieties of public reason that Rawls himself advocates as a response to social change and, therefore, to political justification and legitimacy. Parties articulate, coordinate and enhance societal demands which, without their support, may remain unheard and fail to change the acceptable terms of public reason and political justification. If the political speech of partisans is restrained, this potential for change (and, therefore, its contribution to political legitimacy) is seriously undermined.

Women's Nightwork :deregulation as a straight road to equality?

The book considers the question whether the traditional prohibition of nightwork for female manual workers could be defended against EU (then: EEC) discrimination law requirements and against the German constitution itself. While I was working on the PhD, German labour law still prohibited manual workers (but not white collar employees, or nurses, or policewomen) from working nights. Just before the thesis was published, the German constitutional court held that the prohibition indeed violates the Constitution, but that it must not be repealed without providing for specific protection against health risks ensuing from night work. The Court thus mainly confirmed the thesis' results. The thesis first considers the history of the legislation (which was based on an ILO convention), and discusses the social and health risks related to night work. It then comes to the conclusion that gender roles imply that women are at a greater risk when working nights, but that there is no biological justification (except during pregnancy of course). The thesis further develops a recommendation, based on the constitutional welfare states principle and the constitutional protection of health, to not just abolish the prohibition, but to provide uplevel equalisation of working conditions for women and men. This was the first time I also tried to work comparatively (not perfect at all), but I have certainly improved since then. An English summary of the thesis was published in the 3rd issue of the Cardozo Women's Law Journal 1996, which was also my first ever publicatin in English

The struggle for safe staffing levels in the USA: A political economy of evidence-based practice

This paper examines the debate over nursing staff to patient ratios through the lens of Marxist political economy, arguing that the owners and controllers of healthcare in the USA have a vested interest in opposing mandated minimum ratios, while those involved in carrying out nursing care have a vested interest in their implementation, which coincides with the interests of patients. We examine how evidence-based practice articulates with social power, and proceed to interrogate the research methods used to generate evidence for practice, noting that randomised controlled trials are not suitable for evaluating nurse/patient ratios, which means that observational studies are the primary source of evidence. Representatives of nursing managers have used the fact that observational studies, while demonstrating an association between high ratios and poor outcomes, have not established a causal relationship, to support their argument that there is not sufficient evidence for the imposition of mandatory ratios. We argue that the precautionary principle provides firm justification for mandatory ratios, unless and until a causal relationship has been disproved. We conclude that those involved in the generation of evidence have to choose between technical arguments about the inferiority of observational studies, or emphasising their sufficiency in triggering the precautionary principle.

Promoting normality in the management of the perineum during the second stage of labour

The management of the perineum during birth has multiple long-term effects on women and their families. The midwife has a key role to play and often the techniques they employ vary significantly, as does their justification of these practices. This article seeks to examine current evidence to explore what is known to contribute to lower perineal trauma rates and what practices should be avoided to protect childbearing women. The conclusions drawn show that the updating of
practice and antenatal education may be required so that woman are given the information they need to make an informed choice as to what they want for their own body, child and experience.

The Ocho Poetas Mexicanos and the marginalisation of Catholic authors in post-revolutionary Mexico

The group known as the Ocho Poetas Mexicanos were marginalised in post-revolutionary literary circles and remain largely forgotten by literary history because they were dismissed as Catholic authors by a literary establishment which favoured nation-building literature at a time when Catholicism was excluded from official constructions of nationhood. This article draws attention to the significant contribution made by group members to contemporary cultural life and re-evaluates the work they published in the 1955 anthology which announced their arrival onto the literary scene. An analysis of this collection demonstrates that there was scant justification for labelling the group as Catholic poets and suggests that they are best understood with reference to the “universal” strand of Mexican literature and as heirs to groups such as the Contemporáneos. The treatment of the Ocho Poetas provides important evidence of the way in which Catholic authors were marginalised in mid-twentieth century Mexico, even if they did not express religious beliefs in their work, and draws attention to the non-literary criteria which can come into play when evaluating texts.

The Impact of EU Privacy Legislation on Biometric System Deployment: Protecting citizens but constraining applications

Biometric systems provide a valuable service in helping to identify individuals from their stored personal details. Unfortunately, with the rapidly increasing use of such systems, there is a growing concern about the possible misuse of that information. To counteract the threat, the European Union (EU) has introduced comprehensive legislation that seeks to regulate data collection and help strengthen an individual’s right to privacy. This article looks at the implications of the legislation for biometric system deployment. After an initial consideration of current privacy concerns, it examines what is meant by ‘personal data’ and its protection, in legislation terms. Also covered are issues around the storage of biometric data, including its accuracy, its security, and justification for what is collected. Finally, the privacy issues are illustrated through three biometric use cases: border security, online bank access control and customer profiling in stores.

Authority, Nationality, and Minorities

Prominent normative theories for accommodating minority national groups appeal to the value of national cultures and/or the psychology of group recognition. This article aims to show that an argument from political authority provides a better justification. Building on Joseph Raz's theory of authority, the article argues that members of minority national groups are disadvantaged in relation to their majority counterparts under standard democratic institutions; such institutions do not provide minority national groups with comparable access to the conditions for legitimate political authority. Constitutional arrangements for accommodating minority national groups—such as territorial self-government or power-sharing—are justified insofar as they might offset this disadvantage.

The Dark Side of Nudging: The Ethics, Political Economy, and Law of Libertarian Paternalism

Libertarian paternalism, as advanced by Cass Sunstein, is seriously flawed, but not primarily for the reasons that most commentators suggest. Libertarian paternalism and its attendant regulatory implications are too libertarian, not too paternalistic, and as a result are in considerable tension with ‘thick’ conceptions of human dignity. We make four arguments. The first is that there is no justification for a presumption in favor of nudging as a default regulatory strategy, as Sunstein asserts. It is ordinarily less effective than mandates; such mandates rarely offend personal autonomy; and the central reliance on cognitive failures in the nudging program is more likely to offend human dignity than the mandates it seeks to replace. Secondly, we argue that nudging as a regulatory strategy fits both overtly and covertly, often insidiously, into a more general libertarian program of political economy. Thirdly, while we are on the whole more concerned to reject the libertarian than the paternalistic elements of this philosophy, Sunstein’s work, both in Why Nudge?, and earlier, fails to appreciate how nudging may be manipulative if not designed with more care than he acknowledges. Lastly, because of these characteristics, nudging might even be subject to legal challenges that would give us the worst of all possible regulatory worlds: a weak regulatory intervention that is liable to be challenged in the courts by well-resourced interest groups. In such a scenario, and contrary to the ‘common sense’ ethos contended for in Why Nudge?, nudges might not even clear the excessively low bar of doing something rather than nothing. Those seeking to pursue progressive politics, under law, should reject nudging in favor of regulation that is more congruent with principles of legality, more transparent, more effective, more democratic, and allows us more fully to act as moral agents. Such a system may have a place for (some) nudging, but not one that departs significantly from how labeling, warnings and the like already function, and nothing that compares with Sunstein’s apparent ambitions for his new movement.