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The thorny issue of balancing rights

Conflicting Rights in Balance

Federica Giovanella

The chapter introduces the reader to the thorny issue of balancing conflicting rights. It includes an overview of the main theories on the concept of rights balancing and the proportionality principle and it illustrates what is the core of the book, namely the ongoing conflict between copyright and information privacy. The chapter also illustrates a possible different approach that courts adopt in solving this conflict, notably a ‘conceptual balancing’, that is balancing based on the core conception of colliding rights.

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Edited by François-Charles Laprévote, Joanna Gray and Francesco De Cecco

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Edited by François-Charles Laprévote, Joanna Gray and Francesco De Cecco

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Ioannis Kokkoris

This chapter analyses the special nature of banks, and how the importance of the banking sector and its stability overlaps with the preservation of competitive banking markets. Banks have a unique standing in the economy, and are regarded as more vulnerable to instability than other firms as they provide liquidity and are involved in inter-bank lending markets and the payment system. Due to the systemic nature of banks, governments try to avert a crisis that can affect the whole banking sector by ensuring that banks which are ‘too big to fail’ remain sustainable. Such intervention has a distortive effect on competition, as it prevents ‘self-correction’ of the market. State aid measures that characterized the response of regulators in the recent financial crisis were based on the premise of the special nature of the banking sector and its importance to the economy. In addressing the special nature of banks the chapter looks into the approach adopted towards banks under State aid control, tackling issues such as ‘too-big-to-fail’ and the BRRD and SRM.

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Edited by François-Charles Laprévote, Joanna Gray and Francesco De Cecco

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Peter J. Boettke and Todd J. Zywicki

The Austrian contribution to the development of law and economics is the study of endogenous rule formation, or the spontaneous evolution of social institutions, which can be traced to the founder of the Austrian School, Carl Menger. While Menger’s emphasis on spontaneous institutional analysis was born out of the Methodenstreit, a methodological battle engaged against the German Historical School, this chapter argues that the Austrian contribution to law and economics emerged directly from the socialist calculation debate against market socialism. This debate, we will argue, played an essential role in the re-discovery of the institutional framework in economics during the post-WWII era, particularly in the development of law and economics. In the aftermath of the socialist calculation debate, Menger’s earlier emphasis on institutional analysis was reemphasized by F.A. Hayek, who in turn influenced the early pioneers of law and economics, particularly Aaron Director, Ronald Coase, and Bruno Leoni.

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Investment funds in an era of financialisation

The Promises and Limitations of the New Financial Economy

Roger M. Barker and Iris H.-Y. Chiu

We discuss the rise of institutional fund management as part of the global trend towards financialisation. This context allows us to draw out the key characteristics of modern institutional fund management which are important in shaping their corporate governance roles. The context of financialisation allows us to appraise whether institutions behave like fiduciary or universal capitalists as some commentators have proposed, or self-interested agency capitalists, as suggested by others. Key words: financialisation, fiduciary capitalism, universal owners, agency capitalism, money manager capitalism, asset allocation.

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David Grant and Lyria Bennett Moses

Chapter 1 presents the principal argument of the book, that Technology is best understood within the context of a broad historical trajectory. The notion of the trajectory emerges from a critique and elaboration of two elements of major works by Hans Blumenberg: the concept of a modern mythology and the legitimacy of the modern age. This chapter argues that modern mythological magnitudes – Deity, State and Market – have been imagined as archetypally fearsome entities to deal with our existential concerns, and each has an associated regime of practice promoted by a dominant interest and which constitutes at the same time both the subjection of the individual and the empowerment of the magnitude and of those interests. Because of their fearsomeness, the claim is made by respective dominant interests that each magnitude will, on condition of the subjection of individuals, eliminate their existential concerns and deliver sympathetic conditions to them. Technology is the subject of the latest of such systematic claims, in this case that individuals will be empowered to overcome such concerns by being enabled to create the conditions of their own existence, an Absolutism of the Subject. It is argued that the production of a regime of self-responsibility rather than of subjection offers a way out of this mythological maze.

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Contextualising the issue

The Subsidisation of Heavy Polluters under Emissions Trading Schemes

Elena de Lemos Pinto Aydos

Chapter 1 introduces the book and the book chapters. It discusses the exponential increase in anthropogenic greenhouse gas (GHG) emissions in the past decades and outlines the most recent global emissions trends. The chapter then introduces the Paris Agreement and the key domestic climate change policies that are being adopted by countries in order to meet their intended nationally determined contribution (INDCs). Carbon pricing has been increasingly adopted by countries aiming to mitigate GHG emissions. However, even now, many heavy polluters participating in emissions trading schemes (ETSs) are not paying the full price of carbon. Keywords: climate change – greenhouse gas (GHG) emissions – Paris Agreement – intended nationally determined contribution (INDCs) – carbon taxes – emissions trading schemes (ETSs)