Thesis (Ph. D.)--University of Chicago, 1898. / Reproduction of original from Harvard Law School Library. Includes bibliographical references (p. iii-xxii).

Thesis (Ph. D.)--University of Chicago, 1898. / Bibliography: p. iii-xxii.

Thesis (Ph. D.)--University of Chicago, 1898. / Bibliography: p. iii-xxii.

One of the most significant developments affecting local government in the past fifteen years has been the imposition of compulsory competitive tendering. Initially compulsory competitive tendering (CCT), as imposed by the local Government, Planning and Land Act 1980, only affected the ability of local authorities to perform construction and maintenance work via their Direct Labour Organisations. However, the Local Government Acts 1988 and 1992 now establish a CCT regime for local authority services: this study will examine the development of this regime, rather than that established by the 1980 Act, and evaluate its provisions. This study will be divided into three major Parts. The first will examine the policy developments which preceded the establishment of compulsory competitive tendering for local authority services by virtue of Part 1 of the Local Government Act 1988, and then consider the developments in policy which led to the subsequent expansion of the range of services to CCT and the refinement of the tendering regime which has followed the enactment of the Local Government Act 1992. It is intended to consider the development of the CCT regime within the context of wider legislative developments in local government over the past fifteen years, and of wider policy initiatives relating to the institutional structure and role of both central and local government. The second, and main, Part of the research will be a detailed evaluation of the tendering regime which applies when local authorities wish to perform work via Direct Service Organisations. This regime is put in place by the Local Government Acts 1988 and 1992, and the delegated legislation issued pursuant to those statutes. A wide number of issues will be considered in this Part of the research.

This thesis is a socio-legal study of police and prosecutorial decision-making in the context of special measures support for child witnesses in criminal proceedings. It presents the findings of an empirical research project conducted with the Crown Prosecution Service which examined the implementation of Part II of the Youth Justice and Criminal Evidence Act 1999. Under that Act children may be assisted to testify in criminal proceedings though any feasible combination of: video-recorded evidence; live television link; screens; communication aids; intermediaries; and giving evidence in private. Using a small-scale, primarily qualitative, study involving semi-structured interviews with Crown Prosecutors, this thesis investigates how the attitudes, beliefs, motivations and work practices of the police and prosecutors affect the provision of special measures to children. It does so in the context of a highly directive legal framework which purports to curtail prosecutorial and judicial discretion. The thesis explores the problems that child witnesses encounter within the criminal justice system and the legislative and policy response to their difficulties. It then presents the findings of the current research study in relation to, first, the video-interviewing patterns of police officers and, second, the rate of prosecutors’ applications for special measures. In addition to the statistical data, the thesis explores prosecutors’ own reflective accounts of the factors which shape police and prosecutors’ decision-making. The thesis concludes that where the rules on special measures are highly prescriptive, we have witnessed a radical expansion in their use for children, but that the rigid system has drawbacks which raise pressure for reform. Reform proposals must be carefully considered in the light of infrastructural weaknesses in inter-agency liaison and information-management identified in this thesis. We might also be wary that reform will undermine the criminal justice system’s recently consolidated cultural acceptance of special measures for child witnesses.

The PhD research is concerned with how EU procurement regulation impacts upon the procurement process for Public-Private Partnership (PPP) projects. The process followed to award the contract and to set the terms of the agreement in the procurement of a PPP project (invariably highly sophisticated arrangements) is crucial for value for money. Prior to 2004 the process was regulated by EU legislation designed in the 1970s, which failed to adequately cater for modem procurement methods, like PPPs. Thus new legislation in 2004 introduced a new procedure for these projects: competitive dialogue. However, commentators have identified possible problems with competitive dialogue and there are numerous legal grey areas. The research examines the way in which the new legal framework for competitive dialogue is applied to PPPs in the UK, and actors' perceptions of the framework. It seeks to identify perceived positive aspects of competitive dialogue in facilitating best practice; perceived problems, including any legal uncertainty and constraints on best practice; strategies to conduct the process within the constraints; and the factors that influence compliance and approach to legal risk. The research adopts a socio-Iegal approach, combining analysis of the legal rules, with a study of the literature on theories of regulation and enforcement, and qualitative interviews with legal advisors, procurement officers, and policymakers.

This thesis examines the concept of 'open justice' as it applies to the English criminal process. The conventional understanding of open justice requires merely that trial proceedings are open to the public and that those who attend are free to report to others what they have witnessed. This thesis seeks to demonstrate that the notion of open justice need not be so confined. The oversight of the criminal process provided by the courts, independent administrative bodies and the public, and the open manner in which such oversight is conducted, may be viewed as a more expansive conception of open justice. Such openness is argued to be required by the values of accountability, effective performance, rights protection, democracy and public confidence. It will be demonstrated that the openness flowing from the oversight of the English criminal process provided by the courts, independent administrative bodies and the public, has developed considerably in recent years. There may though be scope for the development of further openness. Where appropriate, proposals designed to achieve such enhanced openness will be advanced.

The emergence of Private Finance Initiative (PFI) in the 1990s has been described as the largest cultural change for decades in the way the public sector operates. PFI projects distinguish themselves from traditional methods of public purchasing by their commercial complexity and long contractual term. Most of these projects have to be delivered within the regulatory framework of public procurement which has remained largely unchanged since the 1970s. The overall objective of the study has been to gain a complete picture of PFI practice in the light of the apparent divergence between the law and commercial requirements. It was aimed to investigate whether this divergence has brought about a "PFI procurement practice." If so, it was aimed to examine the reasons for the emergence of the practice and whether it deviated from procurement law. To achieve these objectives, PFI practice was approached from an outsider and insider perspective. The perspective of insiders was gained by conducting a qualitative empirical study based on interviewing PFI experts. The outsider perspective was derived from legal analysis backed up by relevant material provided by interviewees. The main conclusion of the study is that legal practitioners have adopted solutions in different PFI projects largely resembling each other. The resemblance justifies referring to them as PFI procurement practice. This, practice was found to be not always in compliance with a literal interpretation of procurement law. Factors driving the divergence between law and practice include the perception of practitioners that strict compliance disproportionately hampers the commercially oriented PFI procurement practice. In addition, H. M. Treasury has increased the divergence by publishing guidance notes on PFI procurement which disregard procurement law in many respects. A further reason for the divergence is that private sector bidders have abstained from enforcing procurement law in the courts. In so doing, they have significantly reduced the risk of challenges for authorities developing PFI procurement practice.

What is effective insolvency law? Effective insolvency laws play an important role in the health of an economy, and particularly upon the framework of investment decisions. Understanding how this works is particularly relevant during a period of financial crisis. International Monetary Fund and World Bank guidelines for “Orderly and Effective” insolvency laws were intended to encourage law reforms that would stimulate investment by improving returns to investors in the event of insolvency. The guidelines were strongly influenced by an efficiency approach to insolvency. This approach posits that absolute priority for secured creditors is allocatively efficient and therefore the best means to achieve maximum social welfare. The guidelines also drew heavily on the principles and practices of ‘creditor friendly’ English law, seen by some as a paragon of efficient insolvency. But how accurate is this appraisal of English law or the impact of efficient insolvency? The Enterprise Act 2002 sought to develop a rescue culture by improving inclusivity and increasing distribution of both control and returns amongst stakeholders. Instead of reducing overall returns, as an efficiency model would suggest, research into insolvency outcomes suggests that the revised administration procedure may provide better returns to all groups of creditors, including secured creditors. This thesis uses empirical data to explore the limitations of an efficiency approach to insolvency, and explain why in a developed legal regime inclusivity improves returns by increasing the likelihood of effective rescue. The changes in English law are reflective of an increased private sector investment in informal workouts and a growing emphasis on reputational and relationship concerns. An element of redistribution and inclusivity will provide better global returns to investors than a slavish approach to secured creditor priority.

Luhmann defined social systems as structured around specific social codes, and comprised of the communications relating to that code. This thesis asks how the phenomenon of madness can be understood within this framework and argues that mad utterances are statements or acts which cannot be parsed according to any existing system of social or interpersonal meaning. The psy-disciplines transform these uncertain acts into stable meaning by defining them within a functionalist or pathological framework. These meanings are fragile because the operations of the psyche are socially invisible and so mad utterances have to be defined in relation to existing social systems of meaning. Mad utterances therefore generate uncertainty, which leads systems such as law and the economy to over-react to madness and discredit to a disproportionate degree what mad people have to say. The discreditation of mad people is problematic because it limits their personal autonomy. The ways in which systems exclude mad people, even when their stated objective is to promote their inclusion, is illustrated by the research literature on involvement in healthcare decision-making. The law plays a particular role in sustaining discreditable assumptions about mad people, and this is evidenced by a close examination of the research literature and case law relating to the Mental Health Review Tribunal in England and Wales. Luhmann's systems theory is not normative, so no clear normative agenda for change can be adduced from this description alone. Instead, this account offers a new theoretical framework within which to understand some of the shortcomings of mental health law, which is of particular relevance now that the involvement of mad people in decision-making them has been firmly placed on the legal and political agendas.