Search results for: discretion

Authors: Antonio Sepúlveda, Camila Marques, Carlos Bolonha, Igor De Lazari, Henrique Rangel

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The judicial practice faces a tension between normative discretion and institutional capacities. There are clarity graduations of the statutory text that might induce different specialization levels of the judges. A major problem stemming from that tension is a greater discretion without a proportional specialization. The normative clarity, although its absence can be overcome through specialization, avoids problems related to disproportionate discretion and judicial dissonance. When judicial interpretation deals with the lack of legal clarity, a significant juridical insecurity frame is verified. Decisional uniformity mechanisms are created in order to surpass these problems. Brazil brings great examples, such as the súmulas, the enunciados, and the súmulas vinculantes. Despite of the resistance presented to the latter, mainly based on judges’ independence, even countries of the Common Law tradition develop such mechanisms. The British Guidelines face the lack of legal clarity problem and promote a decisional consonance system.

Keywords: generalist judges, institutional capacities, normative clarity, normative discretion

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Authors: Anna K. Wood, Terri Friedline

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In April and May 2020, the private banking industry approved over 1.7 million emergency small business loans, totaling over $650 billion in federal relief funds as part of the Paycheck Protection Program (PPP). Since the program’s rollout, the extensive evidence of discriminatory lending and misuse of funds has been revealed by investigative journalism and academic studies. This study is based on 41 interviews with frontline banking industry professionals conducted during the days and weeks of the PPP rollout, presenting a real-time narrative of the program rollout through the eyes of those in the role of a street-level bureaucrat. We present two themes from this data about the conditions under which these frontline workers experienced the PPP: Exigent Timelines and Defaulting to Existing Workplace Norms and Practices. We analyze these themes using literature on street-level organizations, bureaucratic discretion, and the differences between public and private sector logic. The results of this study present new directions for theorizing sector-level differences in street-level bureaucratic discretion in the context of mixed-sector collaboration on public service delivery, particularly under conditions of crisis and urgency.

Keywords: street level bureaucracy, social policy, bureaucratic discretion, public private partnerships

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Authors: Chineduum Okpala

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Nigeria, since her independence, has been engulfed in financial crimes of different forms. From embezzlement and conversion of public funds by public servants to stealing, contract inflation, and money laundering. Money laundering in Nigeria, particularly by political exposed persons, has been an issue of concern since independence. Corruption has been endemic, and Nigeria needs to integrate pro-active measures to show to the international community that it is ready to move against this vice. This paper discusses the negative effect of corruption and its effect on prosecutorial discretion. It also takes cognisance of the policy and aims of the anti-money laundering (AML) policy as enacted in Nigeria. It also takes as valid the assumption that the effective application of the rule of law will improve the efficacy of the Nigerian regime. In this regard, the perspective is internal to the Nigerian regime and its internal policy discourse which also reflect its policy discourse at international level. This paper takes notice of the typology of money laundering (ML) offences that most affect Nigeria, which hinges on corruption and abuse of office by a specific type of person, politically exposed persons (PEP). This typology of money laundering offence appears to be the most prevalent in developing nations like Nigeria. The application of essential principles of law provides an opportunity for the internalisation of the rule of law in the anti-money laundering regime in Nigeria, which could aid the successful prosecution of politically exposed persons on money laundering offences. The rule of law and how well the Nigerian legal system manages to deal with the interface between high level politics and the criminal justice system in Nigeria cannot be understood from internal sources but must be developed as a genuine but critical account informed by perspectives external to the Nigerian regime. If the efficacy of the regime is to be assessed in view of notorious failures of the regime, an external assessment is needed. Hence the paper discusses the need to integrate the essential principles of law in the application of prosecutorial discretion in the anti-money laundering regime in Nigeria, particularly with politically exposed persons. The paper highlights jurisdiction where prosecutorial discretion is integrated into the anti-money laundering regime in accordance to the rule of law which forms a basis for comparative analysis of the success of the anti-money laundering regime in Nigeria. This paper discusses why the application of prosecutorial discretion should not be used as a tool to extricate or avail the rich and powerful in the society from justice. The paper aims to argue that the successful prosecution of politically exposed persons, will raise the confidence of the citizens and the international community in the anti-money laundering regime in Nigeria.

Keywords: money laundering, politically exposed persons, corruption, Nigeria

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Authors: Chu Chen, Giorgio Gotti, Tony Kang, Michael Wolfe

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This study examines the role of codes of ethics in reducing the extent to which managers’ act opportunistically in reporting earnings. Corporate codes of ethics, by clarifying the boundaries of ethical corporate behaviors and making relevant social norms more salient, have the potential to deter managers from engaging in opportunistic financial reporting practices. In a sample of international companies, we find that the quality of corporate codes of ethics is associated with higher earnings quality, i.e., lower discretionary accruals. Our results are confirmed for a subsample of firms more likely to be engaging in opportunistic reporting behavior, i.e., firms that just meet or beat analysts’ forecasts. Further, codes of ethics play a greater role in reducing earnings management for firms in countries with weaker investor protection mechanisms. Our results suggest that corporate codes of ethics can be a viable alternative to country-level investor protection mechanisms in curbing aggressive reporting behaviors.

Keywords: corporate ethics policy, code of ethics, business ethics, earnings discretion, accruals

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Authors: Chukwuemeka Castro Nwabuzor

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The 2015 Administration of Criminal Justice Act in Nigeria clearly sets out conditions for bail for felonies, lesser offenses and capital offenses. Even where the conditions for bail are met, granting an application for bail is not automatic as it is subject to the discretion of the court. Where the court, however, grants bail to an accused, the detaining authority which usually is the executive arm of government is bound to comply with the order of the court. This paper discusses the constitutionality of the continued detention of criminal suspects in disobedience to an order of the court and in the absence of an appeal. Particularly, the paper looks at the rights to personal liberty, the dignity of the human person and also the presumption of innocence which remains one of the crucial pillars of our criminal jurisprudence. The paper analyses the reasons posed by the executive for the continued detention of a suspect including State security and security of the suspect and questions whether the reasons are reasonable justifiable in a constitutional democratic society and whether they breach the principles of separation of powers. The paper concludes that the continued detention criminal of suspects in disobedience to court orders constitutes contempt of court and dishonours the principles of separation of powers enshrined in the Nigerian Constitution. This paper makes a strong case for the donation of more enforceable powers to the judiciary particularly with regards to the granting of compensation orders against the executive and ensuring compliance by the executive to bail orders.

Keywords: breach of fundamental rights, contempt of court, discretion of court, right to bail, separation of powers

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Authors: Werner Roux Uys

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The Commissioner for the South African Revenue Service (SARS) holds a high position of trust in South African society and a lack of trust by taxpayers in the Commissioner’s actions or conduct could compromise SARS’ management of public finances. Tax morality – which is implicit in the social contract between taxpayers and the state – includes distinct phenomena that can cause a breakdown if there is a perceived lack of action on the part of the Commissioner to ensure public finances are kept safe. To promote tax morality, the Commissioner must support the judiciary in the exercise of its discretion to punish fraudulent tax activities and corrupt tax practices. For several years the political meddling in the Commissioner’s actions and conduct have caused perceived abuse of power at SARS, and taxpayers believed their hard-earned income paid over to SARS would be fruitless and wasteful expenditure. The purpose of this article is to identify and analyse previous decisions held by the South African judiciary regarding the Commissioner’s actions and conduct in tax matters, as well as consider important political statements and newspaper bulletins for the purpose of this research. The study applies a qualitative research approach and exploratory case study technique. Keywords were selected and inserted in the LexisNexis electronic database to systematically identify applicable case law where the ratio decidendi of the court referred to the actions and/or conduct of the Commissioner. Specific real-life statements, including political statements and newspaper bulletins, were selected to support the topic at hand. The purpose of the study is to educate the public about the perceptions that have transformed taxpayers’ behaviour towards the Commissioner for SARS since South Africa’s fledgling constitutional democracy was inaugurated in 1994. The study adds to the literature by identifying key characteristics or distinct phenomena regarding the actions and conduct of the Commissioner affecting taxpayers’ behaviour, including discretionary decision-making. From the findings, it emerged that SARS must abide by its (own) laws and that there is a need to educate not only South African taxpayers about tax morality, but also the public in general.

Keywords: commissioner, SARS, action and conduct, judiciary, discretionry, decsion-making

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Authors: Liza Michaeli

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Fermata, from fermare, means to be on hold, conjoining contenere (contain), fissare (fasten), and rimanere (stay). It is a musical indication that a note should be (that is, calls to be) prolonged beyond the "normal duration" the note value would indicate. To be "held up" is to be held impractically in the lunga pausa, where the breath "is to be taken," taken in, but the release is impeded. In this pause of unspecified length, life is being prolonged against your discretion but given to you to inhabit. That is why the note value, the recognized "normative value," does not "accept" the significance of the prolongation. The value is interested in "saving time." The query at the heart of "Life in the fermata" will therefore be: is this life on hold, or rather, life holding. The paper shall meditate, via musical notation, on the significance of experience "inside": namely, the hold.

Keywords: fermata, experience, significance, the hold, prolongation

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Authors: Jabulani Sibanda, Clemence Chikiwa

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This paper traces diverse language practices representative of equally diverse conceptions of language. To be dynamic with languaging practices, one needs to appreciate nuanced languaging practices, their challenges, prospects, and opportunities. The paper presents what we envision as three major conceptions of language that give impetus to diverse language practices. It examines theoretical models of the bilingual mental lexicon and how they inform language practices. The paper explores classroom languaging practices that have been promulgated and experimented with. The paper advocates the deployment of multisensory semiotic systems to complement linguistic classroom communication and the acknowledgement of learners’ linguistic and semiotic resources as valid in the learning enterprise. It recommends the enactment of specific clauses on language in education policies and curriculum documents that empower classroom interactants to exercise discretion in languaging practices.

Keywords: languaging, monolingual, multilingual, semiotic and linguistic repertoire

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Authors: Jabulani Sibanda, Clemence Chikiwa

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This paper traces diverse language practices representative of equally diverse conceptions of language. To be dynamic with languaging practices, one needs to appreciate nuanced languaging practices, their challenges, prospects, and opportunities. The paper presents what we envision as three major conceptions of language that give impetus to diverse language practices. It examines theoretical models of the bilingual mental lexicon and how they inform language practices. The paper explores classroom languaging practices that have been promulgated and experimented with. The paper advocates the deployment of multisensory semiotic systems to complement linguistic classroom communication and the acknowledgement of learners’ linguistic and semiotic resources as valid in the learning enterprise. It recommends the enactment of specific clauses on language in education policies and curriculum documents that empower classroom interactants to exercise discretion in languaging practices.

Keywords: languaging, monolingual, multilingual, semiotic and linguistic repertoire

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Authors: Grace Titilayo, Kolawole-Amao

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Influence and authority of law within society should be respected by all and sundry regardless of individual status. Rule of law implies that every citizen is subject to the law. In a society governed by the rule of law, government and its officials and agents are also held subject to and accountable under the law. Law should not be employed to suit individual tenets. Where the rule of law operates, the government is the government of law and not of men. Corruption is a factor that kills the growth of the rule of law. Where corruption flourishes, the rule of law fails, simply put, corruption is a threat to the rule of law. It bastardized and undermines the rule of law and good governance principles - where men rule at their discretion rather than the use of the rule of law which makes governance processes ineffective. Corruption is prevalent all over the world, and has extremely far reaching effects. Many of the world’s greatest challenges have been amplified by corruption, for example poverty, unequal distribution of wealth and resources, and world hunger and it weakens the application and the entrenchment of the rule of law. It saps citizens' trust in their governments and undercuts government credibility. This paper will discuss the rule of law in the present democratic system in Nigeria, the impact of corruption on the rule of law in Nigeria and how corruption undermines and subverts the entrenchment of the rule of law in the present day Nigeria.

Keywords: rule of law, corruption, Nigeria, influence, authority

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Authors: Mengmeng Xiao

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The study examines the proactive promotion of feminist agendas by states experiencing prolonged one-party dominance, with a specific focus on Japan. Through a case study approach, it explores why leaders of the dominant party, the Liberal Democratic Party (LDP), actively endorse women-friendly initiatives. The findings reveal three primary motivations: 1) the adoption of women-friendly policies for legitimation, 2) the establishment or funding of women’s organizations for co-optation, and 3) the enhancement of women’s economic and employment rights for state-building purposes. These findings bridge theories across the democracy/autocracy spectrum, emphasizing the need to restructure the research framework on state feminism beyond the binary categorization of regime types. Additionally, they underscore the significance of acknowledging the discretion exercised by state officials, providing insights into instances where state feminism may fail in certain democratic contexts.

Keywords: state feminism, feminist policies, national machinery, regime types, political parties, Japan

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Authors: A. Movaghar, R. A. Mahdavinejad

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To analyze the effect of various parameters of fluid on the material properties such as surface and depth defects and/or cracks, it is possible to determine the affection of pressure field on these specifications. Stress tensor analysis is also able to determine the points in which the probability of defection creation is more. Besides, from pressure field, it is possible to analyze the affection of various fluid specifications such as viscosity and density on defect created in the material. In this research, the concerned boundary conditions are analyzed first. Then the solution network and stencil used are mentioned. With the determination of relevant equation on the fluid flow between notch and matrix and their discretion according to the governed boundary conditions, these equations can be solved. Finally, with the variation creations on fluid parameters such as density and viscosity, the affection of these variations can be determined on pressure field. In this direction, the flowchart and solution algorithm with their results as vortex and current function contours for two conditions with most applications in pressing process are introduced and discussed.

Keywords: pressing, notch, matrix, flow function, vortex

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Authors: A. Lambert-Mogiliansky

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In this paper, we investigate the properties of simple rules for reappointment aimed at holding a public official accountable and monitor his activity. The public official allocates budget resources to various activities which results in the delivery of public services to citizens. He has discretion over the use of resource so he can divert some of them for private ends. Because of a liability constraint, zero diversion can never be secured in all states. The optimal reappointment mechanism under complete information is shown to exhibit some leniency thus departing from the zero tolerance principle. Under asymmetric information (about the state), a rule with random verification in a pre-announced subset is shown to be optimal in a class of common rules. Surprisingly, those common rules make little use of hard information about service delivery when available. Similarly, PO's claim about his record is of no value to improve the performance of the examined rules. In contrast requesting that the PO defends his records publicly can be very useful if the service users are given the chance to refute false claims with cheap talk complaints: the first best complete information outcome can be approached in the absence of any observation by the manager of the accountability mechanism.

Keywords: accountability, corruption, persuasion, debate

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Authors: Sadiya S. Silvee

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Generally, the decision of the higher court is binding on its subordinate courts. As provided in Article 111 of the Constitution, 'the law declared by the Appellate Division (AD) shall be binding on the High Court Division (HCD) and the law declared by either division of the Supreme Court shall be binding on all courts subordinate to it.' This means the judicial discipline requires the HCD to follow the decision of the AD and that it is necessary for the lower tiers of courts to accept the decision of the higher tiers as a binding precedent. Analyzing the application of Article 111 of the Constitution in the criminal justice system as a sentencing guideline, the paper, by examining whether there is any consistency in decision between one HC Bench and another HC Bench, explores whether HCD can per incuriam its previous decision. In doing so, the Death Reference (DR) Cases are contemplated. Furthermore, the paper shall examine whether the Court of Session follows the decision of the HCD while using their discretion to make the choice between death and imprisonment for life under section 302 of PC. The paper argues due to the absence of any specific direction for sentencing and inconsistency in jurisprudence among the HCD; the subordinate courts are in a dilemma.

Keywords: death reference, sentencing factor, sentencing guideline, criminal justice system and constitution

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Authors: Khalid Javed, Rashid Mahmood

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The constitution empowers the Federal Government to collect taxes on income other than agricultural income, taxes on capital value, customs, excise duties and sales taxes. The Central Board of Revenue (CBR) and its subordinate departments administer the tax system. Each of the three principal taxes has a different history and different set of issues. For a large number of income tax payers the core of the business process is pre-audit and assessment by a tax official. This process gives considerable discretion to tax officials, with potential for abuse. Moreover, this process is also not tenable as the number of taxpayers increase. The report is focused on a total overhaul of the process and organization of income tax. Sales tax is recent and its process and organization is adjusted to the needs of an expanding tax base. These are based on self-assessment and selective audit. Similarly, in customs the accent is on accelerating and broadening the changes begun in recent years. Before long, central excise will be subsumed in sales tax. During the nineties, despite many changes in the tax regime and introduction of withholding and presumptive taxes, Federal Government tax to GDP ratio has varied narrowly around eleven percent. The tax base has grown but still remains narrow and skewed. The number of income tax filers is around one million.

Keywords: central board of revenue, GDP, sale tax, income tax

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Authors: Saud Al Mahdi

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Traditionally,portfolio managers have been discouraged from timing the market. This means, for example, that equity managers have been forced to adhere strictly to a benchmark with static or relatively stable components, such as the SP 500 or the Russell 3000. This means that the portfolio’s exposures to all risk factors should mimic as closely as possible the corresponding exposures of the benchmark. The main risk factor, of course, is the market itself. Effectively, a long-only portfolio would be constrained to have a beta 1. More recently, however, managers have been given greater discretion to adjust their portfolio’s risk exposures (in particular, the beta of their portfolio) dynamically to match the manager’s beliefs about future performance of the risk factors themselves. This freedom translates into the manager’s ability to adjust the portfolio’s beta dynamically. These strategies have come to be known as smart beta strategies. Adjusting beta dynamically amounts to attempting to "time" the market; that is, to increase exposure when one anticipates that the market will rise, and to decrease it when one anticipates that the market will fall. Traditionally, market timing has been believed to be impossible to perform effectively and consistently. Moreover, if a majority of market participants do it, their combined actions could destabilize the market. The aim of this project is to investigate so-called smart beta strategies to determine if they really can add value, or if they are merely marketing gimmicks used to sell dubious investment strategies.

Keywords: beta, alpha, active portfolio management, trading strategies

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Authors: Etta Conteh, Tracy Macintosh

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Introduction: Restraints are often used in the Emergency Department when it is necessary for a patient to be restrained in order to decrease their agitation and better treat them. Chemical and physical restraints may be used on these patients at the discretion of the medical provider. Racism and injustice are rampant within our country, and medicine and healthcare are not spared. While racism and racial bias in medicine and healthcare have been studied, information on the differences in the use of restraints by race are scarce. Objective: The objective of this study is to determine if African Americans and Hispanic-American patients are restrained at higher rates compared to their White counterparts. Methods: This study will be carried out through a retrospective analysis utilizing the Hospital Corporation of America (HCA) national Emergency Department (ED) and inpatient database with patient visits from 2016-2019. All patient visits, with patients aged 18 years or older, will be reviewed, looking specifically for the race and the use and type of restraints. Other factors, such a pre-existing psychiatric condition, will be used for sub-analysis. Rationale: The outcome of this project will demonstrate the absence or presence of a racial disparity in the use of restraints in the Emergency Department. These results can be used as a foundation for improving racial equity in healthcare treatment.

Keywords: emergency medicine, public health, racism, restraint use

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Authors: D. Avnieli

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Immunity of judges from liability represents a departure from the principle that all are equal under the law, and that victims may be granted compensation from their offenders. The purpose of the study is to determine if judicial immunity coincides with the need to ensure the existence of highly independent and incorruptible judiciary. Judges are immune from civil and criminal liability for their judicial acts. Judicial immunity is justified by the need to maintain complete independence and discretion of the judiciary. Scholars and judges believe that absolute immunity is needed to shield judges from pressures, threats, or outside interference. It is commonly accepted, that judges should be free to perform their judicial role in accordance with their assessment of the fact and their understanding of the law, without any restrictions, influences, inducements or interferences. In most countries, immunity applies when judges act in excess of jurisdiction. In some countries, it applies even when they act maliciously or corruptly. The only exception to absolute immunity applicable in all judicial systems is when judges act without jurisdiction over the subject matter. The Israeli Supreme Court recently decided to embrace absolute immunity and strike off a lawsuit of a refugee, who was unlawfully incarcerated. The Court ruled that the plaintiff cannot sue the State or the judge for damages. The questions of malice, dignity, and public scrutiny were not discussed. This paper, based on comparative analysis of many cases, aims to determine if immunity affects the dignity and behavior of judges. It demonstrates that most judges maintain their dignity and ethical code of behavior, but sometimes do not hesitate to act consciously in excess of jurisdiction, and in rare cases even corruptly. Therefore, in order to maintain independent and incorruptible judiciary, immunity should not be applied where judges act consciously in excess of jurisdiction or with malicious incentives.

Keywords: incorruptible judiciary, immunity, independent, judicial, judges, jurisdiction

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Authors: Nipun Ansal

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People guard their beliefs and opinions with their lives. Beliefs that they’ve formed over a period of time, and can go to any lengths to defy, desist from, resist and negate any outward stimulus that has the potential to shake them. Cognitive dissonance is term used to describe it in theory. And every human being, in order to defend himself from cognitive dissonance applies 4 rings of defense viz. Selective Exposure, Selective Perception, Selective Attention, and Selective Retention. This paper is a discursive analysis on how the onslaught of social media, complete with its intrusive weaponry, has amorphized the external ring of defense: the selective exposure. The stimulus-response model of communication is one of the most inherent model that encompasses communication behaviours of children and elderly, individual and masses, humans and animals alike. The paper deliberates on how information bombardment through the uncontrollable channels of the social media, Facebook and Twitter in particular, have dismantled our outer sphere of exposure, leading users online to a state of constant dissonance, and thus feeding impulsive action-taking. It applies case study method citing an example to corroborate how knowledge generation has given in to the information overload and the effect it has on decision making. With stimulus increasing in number of encounters, opinion formation precedes knowledge because of the increased demand of participation and decrease in time for the information to permeate from the outer sphere of exposure to the sphere of retention, which of course, is through perception and attention. This paper discusses the challenge posed by this fleeting, stimulus rich, peer-dominated media on the traditional models of communication and meaning-generation.

Keywords: communication, discretion, exposure, social media, stimulus

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Authors: Ahmad Khoirul Umam, Iin Mayasari

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Indonesia is blessed with rich natural resources and frequently dubbed as the 6th richest country in the world in terms of mining resources, including minerals and coal. Mining can contribute to the socio-economic development by generating state revenue for development, elevating poverty through employment, opening and developing remote areas, putting in basic infrastructure and creating new centres of developments. However, favouritism and rent-seeking behaviour committed by government officials, politicians, and business players in licensing and permit giving in mining and forestry sectors have resisted reforms. Even though Indonesia’s Corruption Eradication Commission (KPK) successfully targeted untouchable actors, public criticism continues to focus on questions of why corruption apparently remains systemic in mining industry in the country? This paper revealed that structural anomalies, as well as legacies of the Soeharto era’s power inequities, have severely inhibited Indonesia’s bureaucratic arrangements that continue to influence adversely the elements of transparency and accountability in mining industry governance. In the more liberalized and decentralized political system, the deficiencies have gradually assisted vested interest groups to band together, thus creating a coalition that can challenge, resist, and contain anti-graft actions. Therefore, Indonesia needs much more serious anti-corruption actions that would require eliminating the monopoly over power, enhancing competition, limiting discretion, and clarifying the rules of business and political competition in the mining sector in the country.

Keywords: anti-corruption, public integrity, private integrity, mining industry, democratization

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Authors: Rowena Clemino Alcoba

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Thailand is host to the largest number of refugees in the region. The country has been one of the most accessible points of entry to refugees around the world because it has relatively lenient visa requirements, enabling asylum seekers to enter the country and subsequently search for legal assistance. However, because Thailand is not a signatory to the 1951 Geneva Convention on Refugees which governs the refugee status determination and safeguards several rights of the refugees, there are no national laws or administrative framework on the protection of refugees. Refugees are considered as illegal migrants, and certain groups are permitted to stay temporarily only upon executive discretion. Aside from the documented group of refugees from the Myanmar border, there are many others who came from different parts of the world. They are known as urban refugees believed to be in the thousands and are scattered in the impoverished areas of Bangkok and the suburbs. This study aims to advance understanding of the role of civil society organizations in supporting refugees, with particular focus on urban refugees. Using the method of triangulation in qualitative research, the study investigates the life journey of a refugee family from Pakistan, their difficulties and struggles to survive in perilous situations. The study presents the dynamics of how civil society works and collaborates to fill the gap for much-needed social services. It also discusses the depth and scope of the role of faith actors in the protection and support of this vulnerable sector. The engagement of civil society reveals framework and structure that aims to create long-term impact. The help provided is not merely monetary or material dole-outs but a platform for refugees to integrate with community, develop skills and make productive use of their time.

Keywords: asylum seeker, civil society, faith actors, refugees

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Authors: Anil Anand

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Despite enormous strides made during the past decade, particularly with the adoption and expansion of community policing, there remains much that police leaders can do to improve police-public relations. The urgency is particularly evident in cities across the United States and Europe where an increasing number of police interactions over the past few years have ignited large, sometimes even national, protests against police policy and strategy, highlighting a gap between what police leaders feel they have archived in terms of public satisfaction, support, and legitimacy and the perception of bias among many marginalized communities. The decision on which one policing strategy is chosen over another, how many resources are allocated, and how strenuously the policy is applied resides primarily with the police and the units and subunits tasked with its enforcement. The scope and opportunity for police officers in impacting social attitudes and social policy are important elements that cannot be overstated. How do police leaders, for instance, decide when to apply one strategy—say community-based policing—over another, like intelligence-led policing? How do police leaders measure performance and success? Should these measures be based on quantitative preferences over qualitative, or should the preference be based on some other criteria? And how do police leaders define, allow, and control discretionary decision-making? Mending Broken Fences Policing provides police and security services leaders with a model based on social cohesion, that incorporates intelligence-led and community policing (IP-CP), supplemented by a quality/quantity/crime (QQC) framework to provide a four-step process for the articulable application of police intervention, performance measurement, and application of discretion.

Keywords: social cohesion, quantitative performance measurement, qualitative performance measurement, sustainable leadership

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Authors: Lung-Lung Hu

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Ronald Dworkin offered a legal theory of ‘chain enterprise’ that all the judges in legal history altogether create a ‘law’ aiming a specific purpose. Those judges are like co-writers of a chain-story who not only create freely but also are constrained by the story made by the judges before them. The law created by Chinese traditional judges is another case, they, compared with the judges mentioned by Ronald Dworkin, have relatively narrower space of making a legal sentence according to their own discretions because the statutes in Chinese traditional law at the very beginning have been designed as panel code that leaves small room to judge’s discretion. Furthermore, because law is a representative of the authority of the government, i.e. the emperor, any misjudges and misuses deviated from the law will be considered as a challenge to the supreme power. However, different from judges as the defenders of law, Chinese litigation masters who want to win legal cases have to be offenders challenging the verdict that does not favor his or his client’s interest. Besides, litigation master as an illegal or non-authorized profession does not belong to any legal system, therefore, they are relatively freer to ‘create’ the law. According to Stanley Fish’s articles that question Ronald Dworkin and Owen Fiss’ ideas about law, he construes that, since law is made of language, law is open to interpretations that cannot be constrained by any rules or any particular legal purposes. Stanley Fish’s idea can also be applied on the analysis about the stories of Chinese litigation masters in traditional Chinese literature. These Chinese litigation masters’ legal opinions in the so-called chain enterprise are like an unexpected episode that tries to revise the fixed story told by law. Although they are not welcome to the officials and also to the society, their existence is still a phenomenon representing another version of justice different from the official’s and can be seen as a de-structural power to the government. Hence, in this present paper the language and strategy applied by Chinese litigation masters in Chinese legal stories will be analysed to see how they refute made legal judgments and challenge the official standard of justice.

Keywords: Chinese legal stories, interdisciplinary, litigation master, post-structuralism

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Authors: Salah Kayed Kayed, Jessica Hong Yang

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This study investigates, whether earnings management in the audited financial statements is associated with tone management in the narrative sections of the annual report in the UK. Earnings management and narrative disclosure are communication strategies used from managers to communicate with investors or other users. Because earnings management and narrative disclosure stem from managers, they can exploit this by doing manipulation in their earnings, and simultaneously disclosing qualitative text (narrative information) in their reports as a tone of words, which will affect users’ perception, and hence users will be misinformed. The association between earnings and tone management can be explained by the self-serving, through cognitive reference points, theory. The sample period lasts from 2010 to 2015, and the sample comprises all non-financial firms that consider under FTSE 350 in any year during the sample period. A list of words from previous research is used to measure the tone in the narrative sections of the annual report. Because this study focuses on the managerial strategic choice and the subjective issues that come from management, it uses the abnormal tone to capture the managerial discretion on tone, and a number of different discretionary accruals proxies to measure earnings management, where accruals management is considered as a manipulation tool from managers to change the users' perception. This research is motivated to fulfil the literature gap by examining the association between earnings and tone management. Moreover, if firms that apply earnings management use tone management to mislead investors, it is beneficial for investors, policy makers, standard setters, or other users to know whether there is an association between earnings management and tone management. Clearly, we believe that this study is fundamental in the accounting context, where it evaluates the communication strategies that are used in firms' financial reports. Consistent with prior research, it is expected that tone management is positively associated with earnings management. This means that firms that use earnings management have incentives to manipulate in their narrative disclosure through tone of words, to reflect a good perception for users, which will conceal the earnings management techniques used in their reporting.

Keywords: earnings management, FTSE 350, narrative disclosure, tone management

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Authors: Ronel Solis, Leonardo Collado

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Migration law in the Republic of Panama has been regulated mainly by the executive branch. This has created a crisis not only institutional but also social because the evolution of these norms has rested greatly from the discretion of the government in office. This has created instability in immigration regulation and more now, with the migration crisis of which Panama is also part. Different migration policies have been established. The most recent is that of the controlled migration flow, in which, for humanitarian reasons, migrants move from the border with Colombia to the border with Costa Rica. Unfortunately, such control is not enough, and in some cases, unprotected migrants have been confined for months, their passports have been withheld, and no recognition of their rights is offered. The Inter-American Court of Human Rights has condemned Panama for the unfair detention of an irregular migrant, who was detained for two years in Panamanian prisons, without having committed a crime and without accessing a just defense. This is the case Vélez Loor vs. the Republic of Panama. Uncontrollable migration has been putting pressure on Panamanian public health services. The recent denunciation of HIV-related NGOs that warns that there are hundreds of foreigners who receive expensive antiretroviral therapy in Panama is serious, and several of them are irregular migrants. On the other hand, there are no border control posts with the Republic of Colombia, because it is a jungle area and migrants are exposed to arms and drug trafficking, and unfortunately, also to prostitution. Government entities such as the border police service have provided humanitarian support to migrants on the border with Colombia, although it is not their administrative function, and various entities discuss who should address this crisis. However, few economic resources are allocated by the government to solve this problem, especially with the recent mass migration of Venezuelans who have fled their country. The establishment of a migratory normative code is necessary to establish uniformity in the recognition and application of migratory rights. In this way, dependence on the changing migration policies of the different Panamanian governments would be eliminated, and the rights of migrants and nationals would be guaranteed.

Keywords: executive branch, irregular migration, migration code, Republic of Panama

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Authors: A. Pascual Ramsay

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Accounts of the management of the economic and euro crisis in Spain have been dominated by an emphasis on external constraints. However, this approach leaves unanswered important questions about the role of domestic political factors. Using systematic qualitative primary research and employing elite interviewing and process tracing, this paper aims to fill this gap for the period of the Partido Socialista Obrero Español (PSOE) administration. The paper shows that domestic politics played a crucial role in the management of the crisis, most importantly by determining the shape of the measures undertaken. In its three distinct stages – downplaying/inaction, reaction/stimulus, and austerity/reform – the PSOE's response was certainly constrained by external factors, most notably EMU membership and the actions of sovereign-bond investors, the ECB and Germany. Yet while these external constraints forced the government to act, domestic political factors fundamentally shaped the content of key measures: the fiscal stimulus, the labour, financial and pension reforms, the refusal to accept a bailout or the reform of the Constitution. Seven factors were particularly influential: i) electoral and political cost, ii) party and partisanship, iii) organised interests, iv) domestic institutions, v) ideological preferences, vi) ineffective decision-making, and vii) judgement and personal characteristics of decision-makers. In conclusion, domestic politics played an important role in the management of the crisis, a role that has been underestimated by dominant approaches focusing on external constraints and weak domestic policy autonomy. The findings provide empirical evidence to support research agendas that identify significant state discretion in the face of international economic integration and an important role for domestic political factors such as institutions, material interests, partisanship and ideology in shaping economic outcomes.

Keywords: economic crisis, Euro, PSOE, Spain

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Authors: Ana Karaman, Dmitriy Gaevoy

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Successful and effective governing boards play an essential role in higher education by providing essential oversight and helping to steer the direction of an institution while creating and maintaining a thriving culture of stewardship. A well-functioning board can also help mitigate conflicts of interest, ensure responsible use of an organization's assets, and maintain institutional transparency. However, boards’ functions in higher education are inhibited by the presence of information asymmetry between the board and management. Board members typically have little specific knowledge about the business side of the higher education, in general, and an institution under their oversight in particular. As a result, boards often must rely on the discretion of the institutional upper administration as to what type of pertinent information being disclosed to the board. The phenomenon of information asymmetry is not unique to the higher education and has been studied previously in the context of both corporate and non-for-profit boards. Various board characteristics have been analyzed with respect to mitigating the information asymmetry between an organizational board and management. For example, it has been argued that such board characteristics as its greater size, independence, and a higher proportion of female members tend to reduce information asymmetry by raising levels of information disclosure and organizational transparency. This paper explores the phenomenon of information asymmetry between boards and management in the context of higher education. In our analysis, we propose a heat map of information asymmetry based on the categories of board competencies in higher education. The proposed heat map is based on the assessment of potential risks to both the boards and its institutions. It employs an assumption that a potential risk created by the presence of information asymmetry varies in its magnitude across various areas of boards’ competencies. Then, we explore the role of board members’ training in mitigating information asymmetry between the boards and the management by increasing the level of information disclosure and enhancing transparency in management communication with the boards. The paper seeks to demonstrate how appropriate training can provide board members with an adequate preparation to request a sufficient level of information disclose and transparency by arming them with knowledge of what questions to ask of the management.

Keywords: higher education, governing boards information asymmetry, board competencies, board training

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Authors: Kevin Brochard, Herve Le Sourne, Guillaume Barras

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The design of a submarine’s hull is crucial for its operability and crew’s safety, but also complex. Indeed, engineers need to balance lightness, acoustic discretion and resistance to both immersion pressure and environmental attacks. Submarine explosions represent a first-rate threat for the integrity of the hull, whose behavior needs to be properly analyzed. The presented work is focused on the development of a simplified analytical method to study the structural response of a deeply immersed cylinder submitted to an underwater explosion. This method aims to provide engineers a quick estimation of the resulting damage, allowing them to simulate a large number of explosion scenarios. The present research relies on the so-called plastic string on plastic foundation model. A two-dimensional boundary value problem for a cylindrical shell is converted to an equivalent one-dimensional problem of a plastic string resting on a non-linear plastic foundation. For this purpose, equivalence parameters are defined and evaluated by making assumptions on the shape of the displacement and velocity field in the cross-sectional plane of the cylinder. Closed-form solutions for the deformation and velocity profile of the shell are obtained for explosive loading, and compare well with numerical and experimental results. However, the plastic-string model has not yet been adapted for a cylinder in immersion subjected to an explosive loading. In fact, the effects of fluid-structure interaction have to be taken into account. Moreover, when an underwater explosion occurs, several pressure waves are emitted by the gas bubble pulsations, called secondary waves. The corresponding loads, which may produce significant damages to the cylinder, must also be accounted for. The analytical developments carried out to solve the above problem of a shock wave impacting a cylinder, considering fluid-structure interaction will be presented for an unstiffened cylinder. The resulting deformations are compared to experimental and numerical results for different shock factors and different standoff distances.

Keywords: immersed cylinder, rigid plastic material, shock loading, underwater explosion

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Authors: Donato Vese

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According to the common interpretation, in a legal system, public powers are established by law. Exceptions are admitted in an emergency or particular relationship with public power. However, we currently agree that law allows public administration a margin of decision, even in the case of non-discretionary acts. Hence, the administrative decision not exclusively established by law becomes the rule in the ordinary state of things, non-only in state of exception. This paper aims to analyze and discuss different ideas on discretionary power on the Rule of Law and Rechtsstaat. Observing the legal literature in Europe and Nord and South America, discretionary power can be described as follow: it could be considered a margin that law accords to the executive power for political decisions or a choice between different interpretations of vague legal previsions. In essence, this explanation admits for the executive a decision not established by law or anyhow not exclusively established by law. This means that the discretionary power of public administration integrates the law. However, integrating law does not mean to decide according to the law, but it means to integrate law with a decision involving public power. Consequently, discretionary power is essentially free will. In this perspective, also the Rule of Law and the Rechtsstaat are notions explained differently. Recently, we can observe how the European notion of Rechtsstaat is founded on the formal validity of the law; therefore, for this notion, public authority’s decisions not regulated by law represent a problem. Thus, different systems of law integration have been proposed in legal literature, such as values, democracy, reasonableness, and so on. This paper aims to verify how, looking at those integration clauses from a logical viewpoint, integration based on the recourse to the legal system itself does not resolve the problem. The aforementioned integration clauses are legal rules that require hard work to explain the correct meaning of the law; in particular, they introduce dangerous criteria in favor of the political majority. A different notion of public power can be proposed. This notion includes two main features: (a) sovereignty belongs to persons and not the state, and (b) fundamental rights are not grounded but recognized by Constitutions. Hence, public power is a system based on fundamental rights. According to this approach, it can also be defined as the notion of public interest as concrete maximization of fundamental rights enjoyments. Like this, integration of the law, vague or subject to several interpretations, must be done by referring to the system of fundamental individual rights. We can think, for instance, to fundamental rights that are right in an objective view but not legal because not established by law.

Keywords: administrative discretion, free will, fundamental rights, public power, sovereignty

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Authors: Abisha Isaac Mohanlal

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Amidst all suspicions and cynicism raised by the legal fraternity, Artificial Intelligence has found its way into the legal system and has revolutionized the conventional forms of legal services delivery. Be it legal argumentation and research or resolution of complex legal disputes; artificial intelligence has crept into all legs of modern day legal services. Its impact has been largely felt by way of big data, legal expert systems, prediction tools, e-lawyering, automated mediation, etc., and lawyers around the world are forced to upgrade themselves and their firms to stay in line with the growth of technology in law. Researchers predict that the future of legal services would belong to artificial intelligence and that the age of human lawyers will soon rust. But as far as the Judiciary is concerned, even in the developed countries, the system has not fully drifted away from the orthodoxy of preferring Natural Intelligence over Artificial Intelligence. Since Judicial decision-making involves a lot of unstructured and rather unprecedented situations which have no single correct answer, and looming questions of legal interpretation arise in most of the cases, discretion and Emotional Intelligence play an unavoidable role. Added to that, there are several ethical, moral and policy issues to be confronted before permitting the intrusion of Artificial Intelligence into the judicial system. As of today, the human judge is the unrivalled master of most of the judicial systems around the globe. Yet, scientists of Artificial Intelligence claim that robot judges can replace human judges irrespective of how daunting the complexity of issues is and how sophisticated the cognitive competence required is. They go on to contend that even if the system is too rigid to allow robot judges to substitute human judges in the recent future, Artificial Intelligence may still aid in other judicial tasks such as drafting judicial documents, intelligent document assembly, case retrieval, etc., and also promote overall flexibility, efficiency, and accuracy in the disposal of cases. By deconstructing the major challenges that Artificial Intelligence has to overcome in order to successfully invade the human- dominated judicial sphere, and critically evaluating the potential differences it would make in the system of justice delivery, the author tries to argue that penetration of Artificial Intelligence into the Judiciary could surely be enhancive and reparative, if not fully transformative.

Keywords: artificial intelligence, judicial decision making, judicial systems, legal services delivery

Procedia PDF Downloads 195