Discretionary Practices Research Articles

The Rule of Law in Times of Technological Uncertainty: Is International Economic Law Ready For Emerging Supervisory Trends?

This paper identifies regulators’ increasing discretionary practices in the innovation sectors and examines whether international economic law is prepared for this supervisory evolution. As demonstrated by the three cases studied, very often technology laws themselves do not entail sufficient specification, and this is primarily because they are heavily oriented toward principles more so than rules to allow for innovation. This raises the question of how to ensure that these ‘principles’ are consistently and predictably applied. GATS Article VI:1was designed to be an important tool in tackling situations in which a general scheme does not make any distinction between foreign and domestic service suppliers, but the administration of this scheme is not reasonable, objective or impartial. The provision, however, is not sufficiently forceful in a manner that safeguards due process and counters the potential abuse of administrative power.

Opportunities and challenges of digitized discretionary practices: a public service worker perspective

Public service workers exercise discretionary power during policy implementation. Due to an immense diffusion of information and communications technology (ICT) in public service provision, they are increasingly exposed to reforms aiming at more efficient and fair decision-making. Whereas extant literature has found that ICT can both enable and constrain public service workers' ability to exercise discretion, we know less about underlying explanations for these inconclusive findings. This paper addresses this research gap by exploring how and why public service workers react to digitized discretionary practices. We draw upon institutional logics to show the underlying considerations of public service workers when they are faced with multiple conflicting demands from market-oriented goals of digitization and professional norms. To identify their reactions and underlying considerations, we have conducted a multiple case analysis of two Norwegian organizations; a district court and a tax administration office. We conclude that public service workers are positive to digitization when it promotes professional aspects of their work and that professional discretion is considered necessary to accomplish tasks of greater complexity.

Whisper down, up and between the lanes: Exclusionary policies and their limits of control in times of irregularized migration

Geographical limitation, ostracism and deportation are defined as state practices that try to handle the unwanted arrival and stay of irregularized migrants in Europe. However, the enforcement of ever‐more restrictive policies in order to regain control over a mobile population is limited by several factors, which at times restrict the state. These limits not only derive from the agency of individuals excluded by the state, but also because of the inherent attributes of the state itself. The inhibiting mechanisms studied, including discretionary practices, often neglect the crucial role played by communication in understanding the contestation of policy implementation. This work discusses how the phenomenon of ‘whispering down, up and between the lanes’ challenges policies and legal outcomes. It tries to explain why state practices often appear to be illegible, not only to the outsider but also to the bureaucrat, with the help of ethnographic research in European migration enforcement agencies.

Why Police “Couldn't or Wouldn't” Submit Sexual Assault Kits for Forensic DNA Testing: A Focal Concerns Theory Analysis of Untested Rape Kits

In jurisdictions throughout United States, thousands of sexual assault kits (SAKs) (also termed “rape kits”) have not been submitted by the police for forensic DNA testing. DNA evidence may be helpful to sexual assault investigations and prosecutions by identifying offenders, revealing serial offenders through DNA matches across cases, and exonerating those who have been wrongly accused, so it is important to understand why police are not utilizing this evidence. In this study, we applied focal concerns theory to understand discretionary practices in rape kit testing. We conducted a three-year ethnography in one city that had large numbers of untested SAKs—Detroit, Michigan—to understand why thousands of SAKs collected between 1980 and 2009 were never submitted by the police for forensic DNA testing. Drawing upon observational, interview, and archival data, we found that while practical concerns regarding resources available for forensic analysis were clearly a factor, as Detroit did not have the funding or staffing to test all SAKs and investigate all reported rapes, focal concerns regarding victim credibility and victim cooperation were more influential in explaining why rape kits were not tested. Implications for the criminal justice system response to sexual assault and rape kit testing legislation are examined.

Audit Committee and Discretionary Loan Loss Provisions in Tunisian Commercial Banks

The purpose of this paper is to study the effect of the audit committee (presence, expertise, independence, size and activity) on earnings management of banks. We selected a sample of ten Tunisian commercial banks examined over the 2001 to 2014 period. The regression models are estimated using the “Panel Corrected Standard Errors” method of Beck and Katz (1995). Our empirical results highlight the effective role of the audit committee's expertise in mitigating discretionary practices. However, the number of meetings, which is less than the standard required by regulatory authorities, does not have a significant disciplinary effect on discretionary loan loss provisions. Results also report that Audit committee’s independence and size have positive effects on discretionary loan loss provisions in our sample.

What's New About a New Methodology for Targeted Dumping? Impacts of the US Discretionary Practice on Margins of Dumping in Anti-Dumping Investigation

Targeted dumping now seems to be a normal part of the United States anti-dumping investigations. While the United States has stopped invoking the zeroing in all review proceedings as well as in original investigations, however, it continues to use the zeroing practice for the ‘weighted average to transaction’ comparison methodology under the targeted dumping circumstances. This article examines the effect of targeted dumping on dumping margins in the United States anti-dumping investigations. We find that the targeted dumping relates to foreign firms which are assigned smaller dumping margins. Markedly, there are slight differences between dumping margins established by targeted dumping and those that are not. Such difference leads to more affirmative findings of dumping and thereby imposes an excessive burden on defense in subsequent reviews to exporters. The article also addresses the impacts of other US discretionary practices on margins of dumping through the regression analysis and confirms that the US implementation of the anti-dumping system is still useful as a potent trade policy seeking protection as it has always been.

Contested control at the margins of the state

ABSTRACTWhile the fact that the implementation of migration policies fails to perfectly manage migration is well known, the actual dynamics of policy implementation have received little attention to date. A serious engagement with this phenomenon requires a move beyond policy texts and political intentions, and towards a ‘migration regime’ perspective that pays attention to the inherent contradictions, conflicts of interest and competing logics within migration control practices. This collection posits a multi-actor perspective that includes state agents, migrants and non-state actors alike and proposes three key factors that require a closer examination: competing institutional logics, discretionary practices and migrants’ agency. Based on original empirical research, the contributions of this collection ‘zoom in’ on specific asymmetrical negotiations over the right to enter or remain in Europe, and focus on the institutional logics and interplay between the different actors involved.

Discretion to Deport: Intersections between Health and Detention of Syrian Refugees in Jordan

Detention and deportation of migrants is a clear performance of state sovereignty that relies on discretionary practices and policies. The ongoing conflict in Syria highlights the strain and social disruption in neighbouring countries that host the majority of the world’s Syrian refugees. This article looks at Jordan’s policies to detain and deport Syrian refugees. Documented reasons for detention and deportations include work permit infractions, including the deportation of Syrian doctors and medical practitioners, as well as deportations for communicable diseases. Detention and deportation policies in Jordan are highly discretionary, making interventions and advocacy on behalf of those detained difficult. Detention and deportation can also have disproportionate impact on populations that are already marginalized, including members of the LGBTI community, survivors of sexual and gender-based violence, and those engaged in sex work.

Gerenciamento de resultado em empresas insolventes: um estudo com os países do Brics

A situação de insolvência se caracteriza com o agravamento da crise financeira interna da empresa, sendo uma situação em que a organização não possui recursos necessários para o cumprimento de suas obrigações e se mostra absolutamente incapaz de quitar suas dívidas. As características desse fenômeno e a pressão pela falência podem levar os gestores a utilizarem de técnicas discricionárias para influenciar a percepção do mercado acerca da viabilidade e credibilidade da empresa e diminuir a probabilidade de serem demitidos. Sob a teoria da agência e as premissas do gerenciamento de resultado, o objetivo do trabalho foi examinar a associação entre o gerenciamento de resultados contábeis e os estágios de insolvência em empresas de capital aberto que integram o BRICS no período de 2009-2013. Assim, para alcançar esse objetivo, a proxy de gerenciamento de resultado foi definida com o uso do modelo Jones Modificado (1995) para cálculo dos accruals discricionários, enquanto a variável insolvência foi abordada diante de dois aspectos gerais tratados por Altman (1993): fluxo e saldo. Com base no modelo proposto, foram utilizadas as técnicas de correlação de Spearman, teste U de Mann-Whitney e regressão com dados em painel em uma amostra balanceada de 9.330 observações. Os resultados da correlação e do teste de média corroboram a hipótese de que as empresas em estágios de insolvência possuem maiores incentivos a se envolverem em práticas discricionárias. Contudo, a regressão indicou que apenas a insolvência baseada em fluxo exerce influência estatisticamente significativa no nível de gerenciamento de resultado.

Beyond guidelines: discretionary practice in face-to-face triage nursing.

This article draws on ethnographic data from a Norwegian emergency primary care clinic (EPCC) to explore nurses' discretionary application of guidelines. Specifically, it analyses nurses' discretionary use of the Manchester Triage System (MTS) when performing face-to-face triage, that is, assessing the urgency of patients' complaints. The analysis shows how nurses assessed patients at odds with MTS prescriptions by collecting supplementary data, engaging in differential diagnostic and holistic reasoning, relying on emotion and intuition, and allowing colleagues and patients to influence their reasoning. The findings also show how nurses' reasoning led them to override guidelines both overtly and covertly. Based on this evidence, it is argued that nurses' assessments relied more on internalised 'triage mindlines' than on codified triage guidelines, although the MTS did function as a support system, checklist and system for supervisory control. The study complements existing research on standardisation in nursing by providing an in-depth analysis of nurses' methods for navigating guidelines and by detailing how deviations from those guidelines spring from their clinical reasoning. The challenges of imposing a managerial logic on professional labour are also highlighted, which is of particular relevance in light of the drive towards standardisation in modern healthcare.

Invisible students: institutional invisibility and access to education for undocumented children

PurposeIn Canada, undocumented children are “institutionally invisible” – their access to education to be found in unwritten and discretionary practices. Drawing on the experience of a three-year university-community partnership among researchers, institutional and community stakeholders, the purpose of this paper is to examine how undocumented children are constructed as excluded from school.Design/methodology/approachThe establishment of this collaborative research space, helped to critically understand how this exclusion was maintained, and highlighted contradictory interpretations of policies and practices.FindingsProposing the analytical framework of “institutional invisibility”, the authors argue that issues of access and entitlement for undocumented children have to be often understood within unwritten and ambiguous policies and practices that make the lives of young people invisible to the institutional entities with which they interact.Originality/valueThe notion of institutional invisibility allows the authors to integrate the missing link between questions of access and deservingness. The paper also reflects on the role of action research in both documenting dynamics and pathways of institutional invisibility, as well as in initiating social change – as both horizontal, and vertical mobilisation.

Scenario of Corporate Social Responsibility in India

Corporate social responsibility (CSR) is gaining more and more importance day by day. Corporate social responsibility (CSR) is the commitment to improve community wellbeing through discretionary business practice and contribution of corporate resources. Business today have realized that in order to continue thriving they have to adopt more holistic and inclusive business model which has direct correlation with business performance. The present article reviews the concept of Corporate Social Responsibility, initiatives taken by prominent corporations towards CSR, and it also highlights the provisions of CSR in Companies Act 2013.

Consequences of earnings management for corporate reputation

PurposeBased on earnings management (EM) practices, the purpose of this research is to analyze their market social consequences on corporate reputation. Moreover, this paper illustrates this impact in the context of family firms which are led and controlled by family members, whose main interest is the long-run survival through succession.Design/methodology/approachA sample comprising 1,169 international listed companies for the period 2006-2010 was used.FindingsThe empirical evidence shows the negative impact of these discretionary accounting practices on corporate image. However, family firms have more incentives for controlling and monitoring managerial decisions, avoiding information asymmetries and, thus, EM behavior and their subsequent loss of reputation. Therefore, fewer negative effects on corporate reputation are observed in highly concentrated ownership structures as a result of the negative link between family control and EM.Originality/valueThis study presents a number of contributions because of its focus on specific discretionary practices and on family firms. This study contributes to previous literature on family firms, as previous papers do not tend to focus on EM issues. Moreover, in contrast to most of the studies that have focused on only one country, we use an international panel database. This leads to potentially more powerful and generalized results. In addition, this paper is the first attempt (to the authors' knowledge) to study the possible impact of EM on corporate reputation in the family firm context.

Patterns in the European Union Anti-Dumping Injury Investigations

This paper attempts to detect discretionary practices in anti-dumping (AD) investigations conducted by the European Union (EU) between 1995 and 2012. It complements findings on discretionary practices documented by Blonigen (2006) for the US Department of Commerce. Using a probit model, we demonstrate that the number of decisive factors used for the causation decision has additional discriminatory power after controlling for traditional causation determinants. The number of decisive factors results from discretionary practices; we address this by endogenizing the number of determinants used in the investigations. Based on the Flex model (Santos Silva et al., 2014), which lets us account for the doubly bounded nature of the number of determinants, we observe that the number of decisive factors used in injury investigations is high for cases involving countries for which the import volume is high and for countries that frequently use their own AD law.

What's in a grade? Grading policies and practices in principles of economics

ABSTRACTSurvey results from a national sample of economics instructors describe the grading policies and practices in principles of economics courses. The survey results provide insights about absolute and relative grading systems used by instructors, the course components and their weights that determine grades, and the type of assessment items used for the major course components of exams, quizzes, and homework. The survey also provides information about the discretionary grading practices of instructors related to awarding bonus points, giving extra credit, or setting cut points for grade decisions. The overall finding is that there is a wide variety of grading policies used in principles courses and substantial discretion in how economics professors determine grades.

Corporate social responsibility as an entrenchment strategy, with a focus on the implications of family ownership

Taking as its basis the classical agency conflict between owners and managers, this article investigates issues of managerial discretion, entrenchment and corporate social responsibility (CSR) in family firms. Using an international sample, its purpose is to examine the promotion of CSR as a strategic shield against the costs of managerial discretion and to determine whether this use of CSR is moderated by family ownership. The results obtained support the argument that CSR may provide managers who manipulate earnings, as a discretionary practice, with the opportunity to entrench themselves. This would be an outcome of the decrease in activism and surveillance by stakeholders whose social and environmental demands are satisfied by the exercise of CSR. Thus, by satisfying stakeholders' demands, managers can use a socially responsible strategy as a mechanism for self-defence. Moreover, our results show that CSR is moderated by the ownership structure of family firms. Family owners serve as active monitors of managers, thus alleviating the classical agency problem and decreasing both the risks associated with managerial discretion and the use of CSR as entrenchment.

Money and the Rule of Law

Contemporary monetary systems permit those in positions of authority to exercise discretionary power in the pursuit of monetary policy objectives. We argue there are strong prima facie reasons why this is normatively problematic. Engaging the literature on the rule of law, we argue that a general and nondiscriminatory rule ought to apply to monetary institutions for the same reasons such a rule ought to apply to other important institutions. We recognize that this prima facie case may be overcome by sufficiently strong consequentialist concerns, but show that these concerns are ungrounded: discretionary monetary authorities, both in theory and practice, perform poorly. We thus affirm the importance of the rule of law for monetary policy as a requisite for both non-arbitrary governance and macroeconomic stability.

Governing Social Innovation: Exploring the Role of ‘Discretionary Practice’ in the Negotiation of Shared Spaces of Community Food Growing

AbstractDespite the extensive areas of under‐used green and brownfield land that remain in public ownership, little academic attention has thus far been given to the role of the public sector in utilising this resource for shared forms of community food growing. Building upon recent calls for more research targeted towards the governance of social innovation, but also the spaces and places in which it occurs, this article presents an in‐depth qualitative account of one such public sector‐led attempt at instigating the co‐production of community food growing. Guided by social innovation theory and Lipsky's (1980) street level bureaucracy, the discussion pays particular attention to the discretional practice of front line public sector workers. Whilst at one level public sector‐led initiatives lack sufficient intention or scope for bringing about the transformation of existing social orders, their contribution to propagating individual and smaller scale occurrences of social innovation in the context of community food security should nevertheless not be overlooked. It is by adopting a more micro‐level, situated and process orientated approach to the analysis of alternative forms of collaborative public sector‐led community food growing, that it becomes possible to evidence the presence of innovative practice as it unfolds on the ground.

The Relationship Between Board Interlocking and Income Smoothing Practices

This study aims to investigate the influence of board interlocking in income smoothing practices in public companies with shares traded on the BM&FBOVESPA. To achieve this objective we adopted a sample comprised of 58 Brazilian companies included in the Bovespa index. The study is classified as empirical and analytical and uses as a proxy for income smoothing a metric called the "smoothing factor" (SF), obtained through the factor analysis technique using the metrics EM1 and EM3 from Leuz, Nanda and Wysocki (2003). As independent variables we employed indicators of social network analysis. From a theoretical point of view, the study is relevant and innovates in making the connection between the resource dependence theory, the agency theory and board interlocking. In practical terms, the study shows the effects of the constitutive elements of corporate social networks, arising from the board interlocking structure, on income smoothing accounting practices. Regression with panel data using fixed effects showed that the constituent elements of corporate social networks tend to influence the practice of smoothing in the sample used. The results of the study show that companies that share board members with other organizations which smooth their results tend to adopt this organizational practice more easily, which can be explained by: (i) companies causing variations in performance due to operational decisions or financial reporting choices; and (ii) managers making use of discretionary practices in the reporting of profits.

General Practitioners' Discretion of Preventive Needs

This article examines general practitioners’ discretion in preventive contexts. Based on semi-structured interviews with 15 general practitioners, we examine how lifestyle is used in their discretionary practices in contexts of healthcare prevention. Despite common educational background and professional ideology, GPs’ do not share lifestyle and our analyses show that this matters to their discretion of patients’ need for lifestyle intervention. The correspondence between general practitioners’ preventive strategies and their own lifestyle preferences is interpreted as evidence of autonomy in general practice where general practitioners act relatively autonomously and differ in their interpretation of how preventive policies should be exercised in practice towards patients.Keywords: discretion, lifestyle, health prevention and promotion, street-level bureaucrats, general practitioners