Simon Halliday

Risk, responsibility and reconfiguration: penal adaptation and misadaptation

This article draws on the findings of an ethnographic study of social enquiry and sentencing in the Scottish courts. It explores the nature of the practice of social enquiry (that is, of social workers preparing reports to assist sentencers) and explores the extent to which this practice is being reconfigured in line with the recent accounts of penal transformation. In so doing, we problematize and explore what we term the ‘governmentality gap’; meaning, a lacuna in the existing penological scholarship which concerns the contingent relationships between changing governmental rationalities and technologies on the one hand and the construction of penality-in-practice on the other. The findings suggest that although policy discourses have, in many respects, changed in the way that these accounts elucidate and anticipate, evidence of changes in penal discourses and practices is much more partial. Drawing on Bourdieu, we suggest that this may be best understood not as a counter-example to accounts of penal transformation but as evidence of an incompleteness in their analyses which reflects the ‘governmentality gap’ and requires the development of more fully cultural penology drawing on ethnographies of penality.

Assisting and Advising The Sentencing Decision Process: The Pursuit of 'Quality' in Pre-Sentence Reports

Pre-sentence reports are an increasingly prevalent feature of the sentencing process. Yet, although judges have been surveyed about their general views, we know relatively little about how such reports are read and interpreted by judges considering sentence in specific cases, and, in particular, how these judicial interpretations compare with the intentions of the writers of those same reports. This article summarizes some of the main findings of a four-year qualitative study in Scotland examining: how reports are constructed by report writers; what the writers aim to convey to the sentencing judge; and how those same reports are then interpreted and used in deciding sentence. Policy development has been predicated on the view that higher-quality reports will help to ‘sell’ community penalties to the principal consumers of such reports (judges). This research suggests that, in the daily use and interpretation of reports, this quality-led policy agenda is defeated by a discourse of judicial ‘ownership’ of sentencing.

Adjudicating the implementation of homelessness law: The promise of socio-legal studies

This paper offers a re-consideration of the contexts within which discretionary homelessness decision making takes place. Drawing on socio-legal studies, it is argued that one such context (which has regularly been ignored within the housing studies literature) is compliance with the law. Drawing on quantitative and qualitative data of internal reviews of homelessness decision making, the paper considers how far (and under what conditions) initial decision making might be affected by its adjudication.

Judicial Review and Bureaucratic Impact : International and Interdisciplinary Perspectives

This collection of essays concerns the relationship between judicial and bureaucratic decision-making.

AN ASSESSMENT OF THE COURT'S ROLE IN THE WITHDRAWAL OF CLINICALLY ASSISTED NUTRITION AND HYDRATION FROM PATIENTS IN THE PERMANENT VEGETATIVE STATE

In this article, we reassess the courts role in the withdrawal of clinically assisted nutrition and hydration from patients in the permanent vegetative state (PVS), focussing on cases where health-care teams and families agree that such is in the patients best interest. As well as including a doctrinal analysis, the reassessment draws on empirical data from the families of patients with prolonged disorders of consciousness, on economic data about the costs of the declaratory relief process to the National Health Service (NHS), and on comparative legal data about the comparable procedural requirements in other jurisdictions. We show that, following the decision in the Bland case, the role of the Court of Protection is now restricted to the direct supervision of the PVS diagnosis as a matter of proof. We argue that this is an inappropriate role for the court, and one that sits in some tension with the best interests of patients. The blanket requirement of declaratory relief for all cases is economically expensive for the NHS and thus deprives other NHS patients from health care. We demonstrate that many of the ancillary benefits currently offered by declaratory relief could be achieved by other means. Ultimately, we suggest that reform to the declaratory relief requirement is called for.

Law in everyday life and death: a socio‐legal study of chronic disorders of consciousness

This paper addresses, from a socio-legal perspective, the question of the significance of law for the treatment, care and the end-of-life decision making for patients with chronic disorders of consciousness. We use the phrase ‘chronic disorders of consciousness’ as an umbrella term to refer to severely brain-injured patients in prolonged comas, vegetative or minimally conscious states. Based on an analysis of interviews with family members of patients with chronic disorders of consciousness, we explore the images of law that were drawn upon and invoked by these family members when negotiating the situation of their relatives, including, in some cases, the ending of their lives. By examining ‘legal consciousness’ in this way (an admittedly confusing term in the context of this study,) we offer a distinctly sociological contribution to the question of how law matters in this particular domain of social life.

Street‐Level Tort Law: The Bureaucratic Justice of Liability Decision‐Making

Most legal scholarship on tort focuses primarily on judicial decisions, but this represents only a limited aspect of tortious liability. The vast majority of decisions concerning tortious liability are made by bureaucrats. Unavoidably then, there are two tiers of justice in tort law. This article focuses on the lower tier – bureaucratic decision-making – arguing that the justice of bureaucratic decisions on tort should be considered on its own terms and not by judicial standards. We develop the notion of bureaucratic justice, applying a normative framework originally set out in relation to public administration. This enables an evaluation of the strengths and weaknesses of different ways of bureaucratically determining liability claims in tort. The regimes discussed concern the liability of public authorities, but decision makers comprise both state and non-state actors and the bureaucratic justice framework is, in principle, applicable to understand and evaluate the liability of both public and private actors.

Judicial review and bureaucratic impact in future research

For the first time, this book brings together the insights of two intellectual disciplines which have hitherto explored these questions separately: political science and law/socio-legal studies. This volume constitutes a landmark text offering an international, interdisciplinary and empirical perspective on judicial reviews impact on bureaucracies. It will significantly advance the research agenda concerning judicial review and its relationship to social change. This chapter focuses on judicial review and bureaucratic impact in future research.

Internal review and administrative justice: some evidence and research questions from homelessness decision-making

This article reports findings from preliminary research regarding the internal review of Scottish homelessness decision-making. The article uses these findings to generate research questions regarding internal review and administrative justice. It suggests that further exploration is needed concerning the relationship between informal and formal internal reviewing of administrative bodies, and between internal review and other accountability pressures which co-exist within the administrative arena. Attention needs to be paid to the range of matters which are scrutinized by administrative bodies and their relative value to the organization. Deeper qualitative research is required to assess the extent to which the adoption of internal review reflects an organizational commitment to the model of procedural justice reflected in its structure. Research is also required to explore why citizens challenge welfare decisions, why more citizens do not, and in relation to the few who do, why they do not persevere beyond the initial stages of review.

Conducting Law and Society Research: Introduction: Beyond Methods – Law and Society in Action

One may be forgiven for wondering what is to be gained from another book on research methods. Certainly no shortage of research methods texts exists, especially when one includes in the counting the volumes written for the separate disciplinary traditions that comprise Law and Society. Yet for scholars about to conduct empirical work for the first time, or about to attempt a very different approach, more should be said about the social realities of conducting research than is found in most of these texts. A proper grasp of the philosophical underpinnings of various research methods and an adequate understanding of the practical prescriptions about the mechanics of research are clearly essential aspects of one’s training. However, the art of cooking is more than the following of recipes. Just as reading recipes in a cookbook does not sufficiently prepare you for your first foray into the kitchen (and certainly does not make you a good cook), most research methods books can only take you so far in preparing you for fieldwork. Orthodoxmethodological texts have two important limitations in this respect. First, these texts do not generally convey a sense of what it feels like to be out in the field, particularly when things go wrong or become difficult (which is almost always the case). As the interviews contained in this book suggest, research projects are usually longer and their narratives more complex than the researcher would have imagined at the outset. Although this point has to be experienced firsthand to be fully appreciated, the retrospective tales told in this volume work particularly well as awindow into the lived reality of research.They demonstrate powerfully that one of the major skill sets required of a fieldworker is not so much