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Book part
Publication date: 10 February 2012

Michal Alberstein

The formality of modern law is a constitutive element in its operation, but the “revolt against formalism” and the charge of mechanical jurisprudence are also as old as…

Abstract

The formality of modern law is a constitutive element in its operation, but the “revolt against formalism” and the charge of mechanical jurisprudence are also as old as the law. This chapter focuses on formalism in legal decision-making in hard cases and assumes that contemporary decision-making in law combines formalistic with nonformalistic expressions as part of its routine operation. The research develops a sensitive multidimensional measure that will be used to evaluate legal texts by examining various vectors of formalism. It begins by exploring diverse jurisprudential cultures of formalism, which have developed mainly in American legal thought. Based on the historical analysis of cultures of formalism, the chapter continues to frame eight claims of formalism that have all been contested in legal writing. It proposes to examine the following parameters, based on these claims: (1) the introduction and framing of the legal question; (2) the use of extralegal arguments; (3) reliance on policy arguments and on legal principles; (4) reference to discretion and choice; (5) the relationship between what is presented as facts and what is presented as norms; (6) preservation of traditional boundaries in law; (7) the use of professional judicial rhetoric; (8) the gap between law in the books and law in action; and (9) judicial stability and institutional deference. Each of these parameters can be used to evaluate the level of formalism in a concrete text. The interplay between diverse evaluations of the same case is a subject for inquiry and contemplation. These parameters can also be redefined as variables for a quantitative content analysis, and legal decisions can be coded accordingly. This will enable an analysis of differences between justices, legal issues, legal jurisdictions, and time frames, as well as the correlation between the various parameters of formalism. The tendency to formalism, according to the analysis here, is never pure and is part of a complex legal culture that usually combines formalistic elements with nonformalistic ones.

Details

Studies in Law, Politics, and Society
Type: Book
ISBN: 978-1-78052-622-5

Article
Publication date: 1 April 2008

Charles A. Pierce, Ivan S. Muslin, Chantay M. Dudley and Herman Aguinis

We reviewed U.S. federal and state sexual harassment court cases involving a prior workplace romance between the plaintiff and alleged harasser. Results of our content…

Abstract

We reviewed U.S. federal and state sexual harassment court cases involving a prior workplace romance between the plaintiff and alleged harasser. Results of our content analysis show that, unlike employees’ decisions, judges’ decisions can be predicted from legal but not ethically salient extralegal case features. Hence, when compared to prior research, our study reveals the following discrepancy: judges follow a traditional legal model, whereas employees follow an ethical model when making decisions about romance‐harassment cases. Our study also reveals that the mere presence (versus absence) of a prior romance reduces the likelihood of a plaintiff’s success in a harassment case. We discuss implications for management practice and research from the perspective of legal and ethical decision making.

Details

Management Research: Journal of the Iberoamerican Academy of Management, vol. 6 no. 1
Type: Research Article
ISSN: 1536-5433

Keywords

Article
Publication date: 1 October 2006

Leisheng Peng, Duminda Wijesekera, Thomas C. Wingfield and James B. Michael

This paper aims to assist investigators and attorneys addressing the legal aspects of cyber incidents, and allow them to determine the legality of a response to cyber…

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Abstract

Purpose

This paper aims to assist investigators and attorneys addressing the legal aspects of cyber incidents, and allow them to determine the legality of a response to cyber attacks by using the Worldwide web securely.

Design/methodology/approach

Develop a decision support legal whiteboard that graphically constructs legal arguments as a decision tree. The tree is constructed using a tree of questions and appending legal documents to substantiate the answers that are known to hold in anticipated legal challenges.

Findings

The tool allows participating group of attorneys to meet in cyberspace in real time and construct a legal argument graphically by using a decision tree. They can construct sub‐parts of the tree from their own legal domains. Because diverse legal domains use different nomenclatures, this tool provides the user the capability to index and search legal documents using a complex international legal ontology that goes beyond the traditional LexisNexis‐like legal databases. This ontology itself can be created using the tool from distributed locations.

Originality/value

This tool has been fine‐tuned through numerous interviews with attorneys teaching and practicing in the area of cyber crime, cyber espionage, and military operations in cyberspace. It can be used to guide forensic experts and law enforcement personnel during their active responses and off‐line examinations.

Details

Internet Research, vol. 16 no. 5
Type: Research Article
ISSN: 1066-2243

Keywords

Book part
Publication date: 30 November 2020

Minh Thi Thu Vu and Salih Zeki Ozdemir

In this study, the authors examine acquirers’ selection of legal advisors for mergers and acquisitions (M&A) transactions. The authors first confirm the importance of…

Abstract

In this study, the authors examine acquirers’ selection of legal advisors for mergers and acquisitions (M&A) transactions. The authors first confirm the importance of their own prior experience and imitation within this context. Then, the authors propose and find that firms with less experience in performing M&A deals place more emphasis on imitating others while firms with more experience with a particular legal advisor focus less on others’ experience with this advisor. The authors further find that when they imitate, firms selectively, rather than broadly, imitate others by focusing on their industry or state peers. The authors present corroborating evidence for these hypotheses through analyzing a matched sample of acquirer – legal advisor pairs developed from an initial dataset of 29,398 domestic and cross-border acquisitions performed by US firms between 2000 and 2010.

Article
Publication date: 6 February 2017

Roger Reinsch, Raymond J. Jones, III and Randy Skalberg

The purpose of this study is to examine the choices social enterprises in the USA have about the legal formation of their business. Recently, new legal forms have been…

Abstract

Purpose

The purpose of this study is to examine the choices social enterprises in the USA have about the legal formation of their business. Recently, new legal forms have been developed in the USA to ensure social goals are legally embedded into the firm. While the development of these new alternative supports social missions, organizations should be aware of both the benefits and drawbacks, which are outlined in this paper. Additionally, we draw on the US Supreme Court’s decision in the Hobby Lobby case to illustrate how social enterprises can embed their social mission into their legal foundation using traditional legal structures, accomplishing the same purpose as the new socially oriented alternatives.

Design/methodology/approach

The authors provide a detailed assessment of the social-oriented legal forms of business based on precedent set in the US Supreme Court Hobby Lobby case.

Findings

Based on precedent in the Hobby Lobby case, the authors’ view is that traditional US legal business structures can be as effective as alternative socially oriented legal forms in the US as a method to legally prevent mission drift by legally embedding social goals into the legal structure of the firm.

Practical implications

By highlighting how social enterprises can use traditional US legal business forms to ensure their social mission as part of the organizational goals, the authors provide another legal avenue, and so US-based social enterprises can continue to focus on addressing social issues without worrying about mission drift from legal pressures.

Social implications

There is quite a lot of hype surrounding the development and adoption of socially oriented legal business forms in the USA with little discussion about the actual need for these new forms. The alternative perspective by the authors informs social enterprises how they can operate within the traditional US legal system while still focusing on their social mission.

Originality/value

The authors are one of the first to argue, based on precedent in the Hobby Lobby case, that US social enterprises need to critically examine which type of legal form is right for their business and what will offer them most benefit to their social mission in the long run.

Details

Social Enterprise Journal, vol. 13 no. 1
Type: Research Article
ISSN: 1750-8614

Keywords

Article
Publication date: 9 April 2018

Emma Lees and Edward Shepherd

The purpose of this paper is to present a “manifesto” exploring a methodological approach to legal analysis, relying upon a morphological understanding of ideology.

Abstract

Purpose

The purpose of this paper is to present a “manifesto” exploring a methodological approach to legal analysis, relying upon a morphological understanding of ideology.

Design/methodology/approach

The authors explore ideology within law and legal culture. They examine one such ideology – rule of law – and consider how this can shape judicial decision-making. They suggest techniques by which such influences can be identified.

Findings

The authors make four findings. First, following Freeden, ideology can be understood as a ubiquitous form of political thinking which seeks to fix the meanings of essentially contested concepts. Second, ideology in this sense forms an important part, but is distinguishable from the wider notion of legal culture. Considering ideology in law as a sub-system of legal culture can therefore be fruitful in providing a rich understanding of interpretive disagreements among the judiciary. Third, rule of law as an ideal is itself ideological, as it comprises contested concepts such as certainty, equality, stability and legality. It can be considered to constitute an internal ideology of law and it can be analysed how the concepts are de-contested in individual decisions. Finally, understanding this can help in the analysis of judgments in areas with high levels of administrative discretion and political contestation, such as planning and environmental law, as it helps us to understand how any particular judge sees the role of the court in its wider political context.

Originality/value

The originality of the authors’ approach lies in the drawing together of methodological techniques and understandings of ideology in, and in relation to, law.

Details

Journal of Property, Planning and Environmental Law, vol. 10 no. 1
Type: Research Article
ISSN: 2514-9407

Keywords

Book part
Publication date: 11 December 2006

Elisabeth Krecké and Carine Krecké

In recent years, traditional legal systems have been increasingly challenged by the rapid and wide-ranging changes induced by modern technology and science which…

Abstract

In recent years, traditional legal systems have been increasingly challenged by the rapid and wide-ranging changes induced by modern technology and science which constantly transform our economies and societies. The rise of a new type of scholarship in contemporary legal thought can be understood in the light of the growing disjunction between the traditional methods of law dealing with social problems and the overall pragmatic spirit of the globalized economies. The intrinsic conservatism of traditional law is sometimes (more or less explicitly) accused of being inadequate to cope with the problems raised by the application of new technologies and sciences, or worse, of being an impediment to the development of the full potential of the modern economies.

Details

Cognition and Economics
Type: Book
ISBN: 978-1-84950-465-2

Book part
Publication date: 10 May 2017

Leslie Joan Harris

Legal standards that allow teens to make health care decisions, or any important decisions, must account for the contingency and variability of minors’ capacity…

Abstract

Legal standards that allow teens to make health care decisions, or any important decisions, must account for the contingency and variability of minors’ capacity. Traditional law denied minors’ legal authority to make any decisions, giving all power to parents. This rule goes too far; the Supreme Court has held that minors have constitutionally protected autonomy-based rights, and modern views about adolescence are inconsistent with the rule. The question is how and where to draw lines.

Legal standards are based on minors’ evolving maturity, policy favoring decisions that follow medical advice, and policy supporting parental authority. This paper uses four hard cases to show how these considerations factor into legal rules.

Details

Studies in Law, Politics, and Society
Type: Book
ISBN: 978-1-78714-344-9

Keywords

Book part
Publication date: 28 March 2022

Renisa Mawani

In the first decades of the nineteenth century to the first decade of the twentieth century, the US Federal and Supreme Courts heard several cases on the legal status of

Abstract

In the first decades of the nineteenth century to the first decade of the twentieth century, the US Federal and Supreme Courts heard several cases on the legal status of ships. During this period, Chief Justice John Marshall and Justice Joseph Story determined that a ship was a legal person that was capable to contract and could be punished for wrongdoing. Over the nineteenth century, Marshall and Story also heard appeals on the illegal slave trade and on the status of fugitive slaves crossing state lines, cases that raised questions as to whether enslaved peoples were persons or property. Although Marshall and Story did not discuss the ship and the slave together, in this chapter, the author asks what might be gained in doing so. Specifically, what might a reading of the ship and the slave as juridical figures reveal about the history of legal personhood? The genealogy of positive and negative legal personhood that the author begins to trace here draws inspiration and guidance from scholars writing critically of slavery. In different ways, this literature emphasises the significance of maritime worlds to conceptions of racial terror, freedom, and fugitivity. Building on these insights, the author reads the ship and the slave as central characters in the history of legal personhood, a reading that highlights the interconnections between maritime law and the laws of slavery and foregrounds the changing intensities of Anglo imperial power and racial and colonial violence in shaping the legal person.

Details

Interrupting the Legal Person
Type: Book
ISBN: 978-1-80262-867-8

Keywords

Article
Publication date: 18 December 2020

Martin Carlsson-Wall, Adrian Iredahl, Kalle Kraus and Mats Wiklund

This paper aims to explore the role of management controls in managing heterogeneous interests during extreme situations.

Abstract

Purpose

This paper aims to explore the role of management controls in managing heterogeneous interests during extreme situations.

Design/methodology/approach

Through interviews and observations, the authors analyse the Swedish Migration Agency’s management controls and study routines during the peak of the European Migrant Crisis.

Findings

Prior to the crisis, the strategy used by the employees was to mediate between two interests (labelled legal security and empathy) to create a workable compromise. During the crisis, however, the authors observed filtering in the form of the previous hierarchical ordering of interests was further strengthened as the employees increasingly relied on just a single interest (the interest which they previously had deemed to be the most important) at the expense of the other interest. The findings suggest that behavioural and social controls helped such filtering; social controls helped certain employees to filter the empathy interest as more important during extreme situations and behavioural controls helped other employees to filter the legal security interest as more important. This help us explain why the authors observe less mediation between the two heterogeneous interests and rather a stricter dominance of one of the interests. The authors also illustrate how especially behavioural controls may become unsupportive of the operations during extreme situations as it consisted of rule-based standards, built to cope with “normal” situations. The heterogeneous interests affected the probability of actors, at times, ignoring behavioural controls when such controls were unsupportive. Actors whose day-to-day operations were mainly guided by the legal security interest remained tightly coupled to behavioural controls even when they felt that these controls were no longer useful. On the other hand, actors who were mainly guided by the empathy interest ignored behavioural controls when they felt that they were unsupportive.

Research limitations/implications

The authors acknowledge that bias might arise from the reliance on retrospective views of past processes and events, which the authors primarily gathered through interviews.

Practical implications

The authors highlight an important relationship between heterogeneous interests (i.e. legal security and empathy) and management controls during the crisis and how this relationship can lead actors to fundamentally different actions.

Originality/value

The two bodies of study on the role of management controls in managing heterogeneous interests and the role of management controls during the crisis have been largely unconnected and it is in this intersection that this study contributes.

Details

Qualitative Research in Accounting & Management, vol. 18 no. 1
Type: Research Article
ISSN: 1176-6093

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