Controlling contractual discretion

In 1993 Leggatt L.J. said in Abu Dhabi National Tanker Co. v. Product Star Shipping Ltd. (The Product Star) [1993] 1 Lloyds Rep. 397, 404: Where A and B contract with each other to confer a discretion on A, that does not render B subject to A’s uninhibited whim. In my judgment, the authorities show that not only must the discretion be exercised honestly and in good faith, but, having regard to the provisions of the contract by which it is conferred, it must not be exercised arbitrarily, capriciously or unreasonably.

Professionals, discretion and public sector reform in the UK:re-visiting Lipsky

Purpose – Seeks to examine how far Michael Lipsky's theory of discretion as it relates to public sector professionals as “street-level bureaucrats” is still applicable in the light of public sector reform and in particular the introduction of increased managerial control over professionals. Design/methodology/approach – The main thesis in Lipsky's work, Street-Level Bureaucracy, that street-level bureaucrats devise their own rules and procedures to deal with the dilemmas of policy implementation is linked to public sector reform over the past 25 years or so. The article differentiates between three forms of discretion, rule, task and value and assesses the extent to which these different forms of discretion have been compromised by reform. Examples are drawn principally from the literature on school teachers and social workers Findings – The findings suggest that the rule-making (hence bureaucratic) capacity of professionals at street-level is much less influential than before although it is questionable whether or not the greater accountability of professionals to management and clarity of the targets and objectives of organisations delivering public policy has liberated them from the dilemmas of street-level bureaucracy. Research limitations/implications – The work has focussed on the UK and in particular on two professions. However, it may be applied to any country which has undergone public sector reform and in particular where “new public management” processes and procedures have been implemented. There is scope for in-depth studies of a range of occupations, professional and otherwise in the UK and elsewhere. Practical implications – Policy makers and managers should consider how far the positive aspects of facilitating discretion in the workplace by reducing the need for “rule-making” to cope with dilemmas have been outweighed by increased levels of bureaucracy and the “de-skilling” of professionals. Originality/value – Lipsky's much cited and influential work is evaluated in the light of public sector reform some 25 years since it was published. The three forms of discretion identified offer the scope for their systematic application to the workplace.

Managerial discretion in distressed firms

This study examines the earnings management behaviour of 455 distressed US firms that filed for bankruptcy during the period 1986-2001. We examine (a) possible earnings management during the years prior to bankruptcy-filing, (b) whether qualified audit opinions cause conservative earnings management behaviour, (c) whether earnings management differs between firms that discontinued operations and firms that survived thereafter, and (d) the effect of earnings management on subsequent stock returns. Our results are consistent with downwards earnings management 1 year prior to the bankruptcy-filing. Results also show that (a) firms receiving unqualified audit opinions 4 or 5 years prior to the bankruptcy-filing event manage earnings upwards in subsequent years, consistent with Rosner [2003. Earnings manipulation in failing firms. Contemporary Accounting Research 20, 361-408], (b) more conservative earnings management seems to be related to the qualified audit opinions rendered in the preceding year, (c) firms with long-term negative accruals the year of bankruptcy-filing have a greater chance to survive thereafter, and (d) more pronounced (negative) earnings management is associated with more negative (next year's) subsequent returns. © 2007 Elsevier Ltd. All rights reserved.

Having your day in court:judicial opportunity and tactical choice in Anti-GMO campaigns in France and the United Kingdom

Investigating the recent direct action campaigns against genetically modified crops in France and the United Kingdom, the authors set out to understand how contrasting judicial systems and cultures affect the way that activists choose to commit ostensibly illegal actions and how they negotiate the trade-offs between effectiveness and public accountability. The authors find evidence that prosecution outcomes across different judicial systems are consistent and relatively predictable and consequently argue that the concept of a “judicial opportunity structure” is useful for developing scholars’ understanding of social movement trajectories. The authors also find that these differential judicial opportunities cannot adequately account for the tactical choices made by activists with respect to the staging of covert or overt direct action; rather, explanations of tactical choice are better accounted for by movement ideas, cultures, and traditions.

Audience design in the police interview:the interactional and judicial consequences of audience orientation

Police-suspect interviews in England & Wales are a multi-audience, multi-purpose, transcontextual mode of discourse. They are conducted as part of the initial investigation into a crime, but are subsequently recontextualised through the judicial process, ultimately being presented in court as evidence against the interviewee. The communicative challenges posed by multiple future audiences are investigated by applying Bell’s (1984) audience design model to the police interview, and the resulting "poor fit" demonstrates why this context is discursively counter-intuitive to participants. Further, data analysis indicates that interviewer and interviewee, although ostensibly addressing each other, may orientate to different audiences, with potentially serious consequences. As well as providing new insight into police-suspect interview interaction, this article seeks to extend understanding of the influence of audience on interaction at the discourse level, and to contribute to the development of theoretical models for contexts with multiple or asynchronous audiences.

Loan loss provisions, bank valuations and discretion : a comparative study between conventional and Islamic banks

This study investigates the use of reported loan loss provisions (LLP) by investors in their valuations of banks within the Middle East and North Africa region between the years 2006 and 2011. We decompose LLP into discretionary and non-discretionary components to test for differential valuations in the two banking sectors. We use alternative criteria to define the components of LLP in banks: loan quality/size and earnings management/ manipulation incentives. We employ a price-level valuation model estimated using two-stage analyses. We find that LLP has positive value relevance to investors in both banking sectors. Investors in Islamic banks price the discretionary component relatively lower than their conventional counterparts. We attribute this result to differences in product and governance structures as well as to the religious perception of Islamic banking. In both banking sectors, investors construe an increase in the non-discretionary component as irrelevant valuation information. Our results are relevant to bank regulators in showing the signalling effect of LLP to bank value and stability.

Loan loss provisions, bank valuations and discretion:a comparative study between conventional and Islamic banks

This study investigates the use of reported loan loss provisions (LLP) by investors in their valuations of banks within the Middle East and North Africa region between the years 2006 and 2011. We decompose LLP into discretionary and non-discretionary components to test for differential valuations in the two banking sectors. We use alternative criteria to define the components of LLP in banks: loan quality/size and earnings management/manipulation incentives. We employ a price-level valuation model estimated using two-stage analyses. We find that LLP has positive value relevance to investors in both banking sectors. Investors in Islamic banks price the discretionary component relatively lower than their conventional counterparts. We attribute this result to differences in product and governance structures as well as to the religious perception of Islamic banking. In both banking sectors, investors construe an increase in the non-discretionary component as irrelevant valuation information. Our results are relevant to bank regulators in showing the signalling effect of LLP to bank value and stability. © 2013 Elsevier B.V.

Discretion and control in education:the teacher as street-level bureaucrat

This article assesses the impact of education reform and the new public management (NPM) on the discretion of school teachers. The focal point of the study is Michael Lipsky's theory of discretion which casts public service professionals and others involved in service delivery as 'street-level bureaucrats' because their high degree of discretionary rule-making power enabled them to effectively make policy as well as implement it. The article considers the relationship between education reform and the NPM and focuses on the increased emphasis on skills-based teaching and changes in management and leadership in schools. The literature and survey of teachers demonstrate that discretion in the workplace has been eroded to such an extent due to a high degree of central regulation and local accountability as to question the applicability of Lipsky's model. The findings are based on the literature and a small survey undertaken by the author. © 2007 BELMAS.

An analysis of police interview discourse and its role(s) in the judicial process

This study analyses the current role of police-suspect interview discourse in the England & Wales criminal justice system, with a focus on its use as evidence. A central premise is that the interview should be viewed not as an isolated and self-contained discursive event, but as one link in a chain of events which together constitute the criminal justice process. It examines: (1) the format changes undergone by interview data after the interview has taken place, and (2) how the other links in the chain – both before and after the interview – affect the interview-room interaction itself. It thus examines the police interview as a multi-format, multi-purpose and multi-audience mode of discourse. An interdisciplinary and multi-method discourse-analytic approach is taken, combining elements of conversation analysis, pragmatics, sociolinguistics and critical discourse analysis. Data from a new corpus of recent police-suspect interviews, collected for this study, are used to illustrate previously unaddressed problems with the current process, mainly in the form of two detailed case studies. Additional data are taken from the case of Dr. Harold Shipman. The analysis reveals several causes for concern, both in aspects of the interaction in the interview room, and in the subsequent treatment of interview material as evidence, especially in the light of s.34 of the Criminal Justice and Public Order Act 1994. The implications of the findings for criminal justice are considered, along with some practical recommendations for improvements. Overall, this study demonstrates the need for increased awareness within the criminal justice system of the many linguistic factors affecting interview evidence.

Discretion in accounting for pensions under IAS 19:using the ‘magic telescope’?

We use a panel data set of UK-listed companies over the period 2005–2009 to analyse the actuarial assumptions used to value pension plan liabilities under IAS 19. The valuation process requires companies to make assumptions about financial and demographic variables, notably discount rate, price inflation, salary inflation and mortality/life expectancy of plan members/beneficiaries. We use regression analysis to analyse the relationships between these key assumptions (except mortality, where disclosures are limited) and company-specific factors such as the pension plan funding position and duration of pension liabilities. We find evidence of selective ‘management’ of the three assumptions investigated, although the nature of this appears to differ from the findings of US authors. We conclude that IAS 19 does not prevent the use of managerial discretion, particularly by companies whose pension plan funding positions are weak, thereby reducing the representational faithfulness of the reported pension figures. We also highlight that the degree of discretion used reflects the extent to which IAS 19 defines how the assumptions are to be determined. We therefore suggest that companies should be encouraged to justify more explicitly their choice of assumptions.