This book examines how changing understandings of the relationship between government and the governed came to be reflected in the buildings designed to house the modern legal system. It examines the extent to which changing theories of the trial, the pursuit of new rights and a new politics of recognition altered existing hierarchies and expectations about how people should interact with each other in public space and participate in the trial. Drawing on extensive archival resources in the UK, but also using case studies from other jurisdictions, the book details how civil servants, judges, lawyers, architects, engineers and security experts have talked about courthouses over the last 50 years. In doing so, it uncovers a changing history of ideas about how the competing goals of transparency, majesty, participation, security, fairness and authority have been achieved, and the extent to which aspirations towards popular sovereignty, egalitarianism and participation have been realized in physical form. As this book demonstrates, the power of architecture to frame attitudes and expectations of the justice system is much more than an aesthetic or theoretical nicety. Legal subjects live in a world in which the configuration of space, the cues provided about behaviour by the built form and the way in which justice is symbolised play a crucial, but largely unacknowledged, role in creating meaning and constituting legal identities and rights to participate in the civic sphere.-
L Mulcahy, 'In Crime’s Archive: The Cultural Afterlife of Evidence by Katherine Biber' (2019) 46 Journal of Law and Society 516 [Review]
ISBN: 9780367208356
DOI: 10.1111/jols.12175
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L Mulcahy, 'First Woman Attorney General for England, Wales and Northern Ireland, Patricia Scotland, 2007' in R Achmuty, E Rackley (ed), Women’s Legal Landmarks: Celebrating 100 Years of Women and Law in the UK and Ireland (Hart Publishing 2018)
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L Mulcahy and T Flessas, 'Limiting Law: Art in the Street and Street in the Art' (2018) 14 Law, Culture and The Humanities 219
ISBN: 9781782259794
DOI: 10.1177/1743872115625951-
L Mulcahy, E Rowden and K Orr, 'Making Sense of Law: Pungency, Feel and Rhythm' (2018) 14 Law, Culture and The Humanities 199
Conventional legal responses to street art have tended to characterize it as a problem that is best dealt with through criminal or property law. This is not necessarily perceived of as a problem by street artists who have actively sought to situate understandings of their work outside of the law. But attitudes are changing. Street art is increasingly seen as having commercial value, enhancing the cityscape, creating new local art markets, attracting tourists, and contributing to the gentrification of impoverished areas. The result is that conventional ways of conceiving of street art have begun to pose new challenges to concepts of crime and property. Drawing on an observational study in London, this article proposes a new theorization of the legal problems posed by street art that pays close attention to the sensual experience of encountering it in the city and to street art as performance rather than artefact.
DOI: 10.1177/1743872115623173
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L Mulcahy, 'Revolting consumers: a revisionist account of the 1925 ban on photography in English and Welsh courts and its implications for debate about who is able to produce, manage and consume images of the trial' (2018) 14 International Journal of Law in Context 559
DOI: 10.1017/S1744552318000241-
L Mulcahy, 'Justice: Visual Representations of the Subjects of the Law' in I Ward (ed), A Cultural History of Law in the Age of Reform (Routledge 2017)
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L Mulcahy, 'The Eyes of the Law: A Visual Turn in Socio-Legal Studies?' (2017) 44 Journal of Law and Society 111
This paper offers a revisionist history of the banning of photography in English and Welsh courts in 1925 and explores the contention that a complete rationale for the ban has never been adequately articulated. While existing accounts of the ban have placed emphasis on the outrage caused by press coverage of a handful of sensational murder trials, this paper offers the first comprehensive analysis of photographs of trial scenes in the decades leading up to the ban. In doing so, it argues that the exposure of the legal system to scrutiny by the press and public, made possible by new technologies and reporting practices, was much more pervasive than has previously been suggested. It also contends that, although parliamentarians claimed that the purpose of the ban was to protect vulnerable members of the public, it actually did a much better job of preserving the interests of the legal, political and social elite, including judges, against a backdrop of fears about an increasingly disrespectful populace. More particularly, it is suggested that the ban allowed the state to take back its monopoly over the production, management and consumption of images of judges and other key actors in the courtroom in an effort to re-impose social order and retain the mystery of law.
ISBN: 978-1-4742-1285-4
DOI: 10.1111/jols.12052-
L Mulcahy, 'Docile Suffragettes? Resistance to Police Photography and the Possibility of Object–Subject Transformation' (2015) 23 Feminist Legal Studies 79
A number of sub-disciplines have emerged in recent years with the specific goal of examining the visual dynamics of academic fields of inquiry. The turn to the visual masks a multitude of meanings about the significance of the image, ranging from new ways of defining a field of inquiry, to what constitutes legitimate sources for research or discussions of image production or visual prompts as a data collection method. This article asks what it means for socio-legal scholars to engage with the image and the opportunity it might provide us with to see what law looks like from the perspective of law's subjects. These might include art installations in galleries, images of the places where justice is administered as well as photographs created by those who are subjected to legal regulation. In addition to a written essay I offer up three visual essays which can be read and contemplated with or without the written text which accompanies them.
DOI: 10.1007/s10691-015-9280-x-
L Mulcahy and D Sugarman, 'Introduction: Legal Life Writing and Marginalized Subjects and Sources' (2015) 42 Journal of Law and Society 1
This paper provides a revisionist account of the authority and power of the criminal mugshot. Dominant theories in the field have tended to focus on the ways in which mugshots have been used as a way of disciplining criminal bodies and rendering them docile. It is argued here that additional emphasis could usefully be placed on stories of resistance in which the monological production site of the prison or police station transforms into a dialogical site, in which the objects of police photography can acquire agency. These issues are explored with particular reference to a set of photographs of English suffragettes acquired by the police for surveillance purposes. The suffragette’s refusal to comply with requests to have their photographs taken is used as a case study through which to examine the ways in which conventions about the form of the mugshot can be subverted, ideas about the types of people who were the object/subject of mugshots disrupted and the assumption of documentary neutrality undermined.
DOI: 10.1111/j.1467-6478.2015.00695.x
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L Mulcahy, 'Watching Women: What Illustrations of Courtroom Scenes Tell Us about Women and the Public Sphere in the Nineteenth Century' (2015) 42 Journal of Law and Society 53
DOI: 10.1111/j.1467-6478.2015.00698.x-
L Mulcahy, 'The Market for Precedent: Shifting Visions of the Role of Clinical Negligence Claims and Trials' (2014) 22 Medical Law Review 274
This article provides a revisionist account of the role of women in the legal system in the latter decades of the nineteenth century. Contrary to assertions that women played no role in trials other than as defendants and witnesses for most of our legal history, it suggests that women were much more active in the public sphere of Victorian law courts than previously envisaged. Drawing on depictions of trials in popular visual culture and fine art, it also reveals how images of the active female spectator challenged the emergence of new codes of behaviour which sought to protect the masculine realm of law from corruption by the feminine. It is argued that images have much to reveal about the socio-legal dynamics of trials and the ways in which fine art has been complicit in the construction and reconstruction of behavioural codes in the courtroom.
DOI: 10.1093/medlaw/fwu007-
D Campbell, L Mulcahy and S Wheeler (eds), Changing Conceptions of Contract: Essays in Honour of Ian Macneil (Palgrave Macmillan 2013)
This article considers the interface between the standard setting activity of the NHS Litigation Authority, and the courts and uses the clinical negligence action as a prism through which to examine it. It is suggested that despite its many disadvantages, the clinical negligence action remains an important safety valve when internal regulatory systems fail or are insufficiently transparent to gain full legitimacy. More specifically, it explores the ways in which attitudes about the usefulness of the data contained in claims against the NHS have changed in the aftermath of a number of high profile inquiries which have focused on issues of poor performance. The article concludes that while much greater use is now been made of the data contained in claims when setting standards, strategies for prompting judicial precedent as an alternative way of mobilising standard setting behaviour remain under developed.
Changing Concepts of Contract is a prestigious collection of essays that re-examines the remarkable contributions of Ian Macneil to the study of contract law and contracting behaviour. Ian Macneil, who taught at Cornell University, the University of Virginia and, latterly, at Northwestern University, was the principal architect of relational contract theory, an approach that sought to direct attention to the context in which contracts are made. In this collection, nine leading UK contract law scholars re-consider Macneil's work and examine his theories in light of new social and technological circumstances. In doing so, they reveal relational contract theory to be a pertinent and insightful framework for the study and practice of the subject, one that presents a powerful challenge to the limits of orthodox contract law scholarship. In tandem with his academic life, Ian Macneil was also the 46th Chief of the Clan Macneil. Included in this volume is a Preface by his son Rory Macneil, the 47th Chief, who reflects on the influences on his father's thinking of those experiences outside academia. The collection also includes a Foreword by Stewart Macaulay, Malcolm Pitman Sharp Hilldale Professor Emeritus at the University of Wisconsin-Madison, and an Introduction by Jay M Feinman, Distinguished Professor of Law at Rutgers School of Law.-
L Mulcahy, ''The Collective Interest in Private Dispute Resolution' (2013) 33 Oxford Journal of Legal Studies 59
ISBN: 9781137574305
DOI: 10.1093/ojls/gqs032-
L Mulcahy, 'Back to the Future? The Challenge of the Past for Courthouses of Tomorrow' in J Simon, N Temple and R Tobe (eds), Architecture and Justice: Judicial Meanings in the Public Realm (Ashgate 2013)
This article considers the relationship between the interests of individual litigants and the facilitation of doctrine for the collective good. More specifically, it examines the extent to which the policy and rules governing the management of civil litigation reflect a genuine commitment to the development of the common law. It is argued that litigation models in England send out conflicting messages about the commitment our society has to nurturing precedents and that we remain ambivalent about whether resources should be directed to identifying cases with precedent-setting potential. Contrary to recent policy statements that encourage disputants to resolve issues in private forums such as mediation, this article concludes that the time is ripe to turn our attention to the equally important issue of how to ensure that certain types of cases reach a public forum.
At the 2009 conference in which the contributors to this book gathered the architect Stephen Quinlan delivered a plenary lecture on the recently built and much discussed Civil Justice Centre in Manchester designed by Denton Corker Marshall. This new court complex is the largest to have been built in England since the Royal Courts of Justice were completed in 1882.
The glass fronted court complex, with its nine storey atrium and gravity defying protruding ‘fingers’, could not provide a more stark contrast to George Edmund Street’s ornate gothic revival building in the Strand. But what was most significant about Quinlan’s presentation for the purposes of this chapter was that the first comment in response to it came from an architectural historian who was concerned that the Manchester civil justice centre was not recognizable as a courthouse. Devoid of the form, signs and symbols associated with this established building type, Quinlan’s critic claimed that England’s most important new court building rendered the notion of ‘courthouse’ meaningless.
The idea that courts are, and should be, instantly readable is far from being a controversial one. Whilst recognizing a variety of forms adopted by designers in her authoritative account of the history of the English law court, Clare Graham surmises that one of the key characteristics of modern courthouses is that by 1914 their planning was highly distinctive. 1 In their recent review of historic English courts for English Heritage Brodie et al. have also claimed that law courts are designed to be recognized externally and understood internally. 2 In this chapter, I argue that these assertions suggest a certainty about the settled nature of design which is easily disrupted when subjected to closer scrutiny. While it has been suggested that our ideas about what constitute a court are now quite fixed my analysis suggests that the concept of a courthouse to which these authorities allude is actually a very recent invention. Moreover, even if it can be claimed that there is now a recognizable template for courthouse design, I contend that it is one which is in urgent need of review. As reforms of the legal system place increasing emphasis on informality, and the idea of the virtual trial explored by Emma Rowden elsewhere in this collection becomes a reality, I question the legitimacy of confidence in the ongoing relevance of existing templates.-
L Mulcahy, 'Imagining Alternative Visions of Justice: An Exploration of the Controversy Surrounding Stirling Lee’s Depictions of Justicia in Nineteenth-Century Liverpool' (2013) 9 Law, Culture and The Humanities 311
ISBN: 9781409431732
DOI: 10.1177/1743872111398064-
L Mulcahy, 'Putting the Defendant in Their Place: Why Do We Still Use the Dock in Criminal Proceedings?' (2013) 53 British Journal of Criminology 1139
In recent years there has been a burgeoning interest in the relationship between law, art and politics. New work in the field encourages us to explore the ways in which art can pose a threat to the supposed rationality of modern law by appealing to imagination and emotion. This article explores these general themes with reference to a specific controversy about a series of bas relief sculptures depicting Justitia which were placed on the side of what was arguably the most spectacular law court to be built in England in the nineteenth century. Although this episode has been explored by art historians, hardly any attention has been drawn to what the episode reveals about the political work that art was, and is, expected to undertake on behalf of the elite and legal establishment. This article attempts to bridge that gap by exploring the extent to which the creator of public artwork, so often a handmaiden of the State when helping us to imagine justice, is also capable of presenting us with subversive images of our Goddess which can, and should, disturb us.
DOI: 10.1093/bjc/azt037-
L Mulcahy, 'Telling Tales about Relational Contracts: How Do Judges Learn about the Lived World of Contracts?' in D Campbell, L Mulcahy and S Wheeler (eds), Changing Concepts of Contracts: Essays in honour of Ian Macneil (Palgrave Macmillan 2013)
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L Mulcahy and S Wheeler, 'Socio-Legal Accounts of the Lived world of contract' in C Hunter (ed), Integrating Socio-Legal Studies into the Law Curriculum (Palgrave Macmillan 2012)
This article considers the extent to which the on-going use of the dock in criminal proceedings can be justified. It is argued that the use of the dock interferes with the defendant’s ability to participate in the trial, the right to counsel and the presumption of innocence. This has been recognized in some jurisdictions and, in the United Kingdom, its use has been criticized by key stakeholders in the criminal justice system. Despite the launching of campaigns for its abolition, the English dock is becoming increasingly fortified and continues to be used to incarcerate defendants in trials involving minor charges. Drawing on previously unexplored archives and data from the United States, this article seeks to understand justifications for the retention of the dock and the reasons why campaigns for its abolition have failed.
ISBN: 978-1-137-57430-5
The law of contract is ideally suited to teaching from a socio-legal perspective. While doctrinal scholars place primary emphasis on the text, socio-legal researchers prefer to focus on context. They look, in particular, at the extent to which the formal rules of contract are considered legitimate or useful by those for whom they are designed. A wide range of empirical studies of the ‘lived world of contract’ now exist across time, industries and legal systems which suggest that contract law is not always used in the ways anticipated by doctrinal lawyers. Whilst textual analysis remains important, these findings have challenged the academy to consider the legitimacy of laws of contract which do not always reflect the practices and needs of the commercial sphere. They also encourage us to look beyond what Macaulay (2003) has called the paper deal to the range of extra-legal normative frameworks which bind and govern commercial relationships. Research suggests that phenomena such as trust, co-operation and a good reputation can be as effective in making a commercial deal work as the threat of litigation or liquidated damage clauses. In short, socio-legal accounts of contracts encourage scholars to be more modest in their claims about the centrality of law in successful business deals.
Despite this active interest in the lived world of contract, it could be argued that socio-legal accounts of contract remain under represented in textbooks written for students. There are a few notable exceptions but most popular textbooks continue to present contract doctrine as a series of rules with their own jurisprudential and internal logic. In other instances, there is a tendency to discuss empirical studies as an ‘add-on’ to discussions of doctrine by way of providing some context but little direct challenge to the canon. Used in this way, socio-legal studies is presented as representing a different world of contract which is of some relevance to hard law but should not be allowed to detract too much from the learning of it. In this chapter we argue that a socio-legal approach can, and should, play a much more central role in our analysis of case law. In particular we attempt to demonstrate that socio-legal approaches can be used as a powerful tool to critique the credibility of contract jurisprudence and imagine different ways of conceiving of exchange. Our position is that legal formalism has tended to encourage the spurious idea that law is in some way autonomous, an end in itself, rather than a means to a legitimate social order.-
L Mulcahy, Legal Architecture: Justice, Due Process and the Place of Law (Routledge 2011)
ISBN: 978-0-230-30448-2
Legal Architecture addresses how the environment of the trial can be seen as a physical expression of our relationship with ideals of justice. It provides an alternative account of the trial, which charts the troubled history of notions of due process and participation. In contrast to visions of judicial space as neutral, Linda Mulcahy argues that understanding the factors that determine the internal design of the courthouse and courtroom are crucial to a broader and more nuanced understanding of the trial. Partitioning of the courtroom into zones and the restriction of movement within it are the result of turf wars about who can legitimately participate in the legal arena and call the judiciary to account. The gradual containment of the public, the increasing amount of space allocated to advocates, and the creation of dedicated space for journalists and the jury, all have complex histories that deserve attention. But these issues are not only of historical significance. Across jurisdictions, questions are now being asked about the internal configurations of the courthouse and courtroom, and whether standard designs meet the needs of modern participatory democracies: including questions about the presence and design of the modern dock; the ways in which new technologies threaten to change the dynamics of the trial and lead to the dematerialization of our primary site of adversarial practice; and the extent to which courthouses are designed in ways which realise their professed status as public spaces. This fascinating and original reflection on legal architecture will be of interest to socio-legal or critical scholars working in the field of legal geography, legal history, criminology, legal systems, legal method, evidence, human rights and architecture.-
C Stychin and L Mulcahy, Legal Methods and Systems: Text and Materials (4th edn Sweet and Maxwell 2010)
ISBN: 9780415575393
Legal Methods and Systems: Text and Materials uses a text and materials format to provide a mini library and integrated teazching tool for Legal Method, English Legal System and Introduction to Law courses. Introduces students to a range of different ways of thinking about the study of law including doctrinal, socio-legal and critical perspectives. Provides a wealth of materials and commentary, along with a series of focused questions suitable for tutorials and essays. Discusses the implications of the opening of the new Supreme Court and reflects on the success of the Woolf reforms of the civil litigation system. Includes examples and a questions and problems section to help students grasp the subject. Incorporates high0level diagrams and mind maps in order to enhance retention of legal principles and procedures. Includes other user-friendly features such as “key concepts” boxes, suggested further reading and web sources.-
L Mulcahy and C Andrews, 'Baird Textile Holdings v Marks & Spencer plc' in R Hunter, C McGlynn and E Rackley (eds), Feminist Judgments: From Theory to Practice (Hart Publishing 2010)
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V Bondy and L Mulcahy, Mediation and judicial review (The Public Law Project 2009)
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L Mulcahy, 'Architectural Precedent: The Manchester Assize Courts and Monuments to law in the Mid-Victorian Era' (2008) 19 King's Law Journal 525
ISBN: 9780414041837
ISBN: 978-1-8494-6053-8
The aim of this research is to establish an independent evidence base for identifying the value and the limits of mediation as an alternative to, or used alongside, judicial review. It has been devised in response to claims made by government and mediation providers that mediation can lead to savings in costs as well as in court time, and provide remedies and solutions to disputes that cannot be offered by the court. These claims will be considered in the specific context of judicial review, which not only has an important constitutional function, but, compared to other forms of civil litigation, offers fl exibility, low costs and speed. Moreover, claims as to the value of mediation need to be examined in light of the realities of judicial review litigation. For example, a large proportion of judicial review claims end in settlements negotiated between the parties, with little input from the court. Therefore, any aspects of added value that mediation may offer need be considered in relation to bilaterally negotiated settlements as well as in relation to judicial determinations.
The claims for mediation stand in stark contrast to the low take-up of mediation by lawyers generally. In particular, it is indisputable that the take-up of mediation as an alternative to judicial review is low. The research team was interested in analysing the reasons for this, for instance, whether it comes about as a result of lack of understanding of the process, an assessment of it as adding no value to bilateral negotiations, or more principled concerns such as the importance of a transparent supervisory role for the court, the need to create precedents, and the retreating role of adjudication in public law.
DOI: 10.1080/09615768.2008.11427706-
L Mulcahy, Contract Law in Perspective (5th edn Routledge 2008)
This article looks at the story behind the building of the Manchester Assize Courts and the symbolic importance that can be attached to its construction by legal scholars. It attempts to build on the burgeoning literature on legal architecture, some of which has begun to invite us to look at the spatial dynamics of courtrooms and their implications for due process. The courts and adjacent judges’ lodgings, which were designed by Alfred Waterhouse to mark the granting of a new Assize, tell us much about expectations of law in the mid-nineteenth century. Built during an era in which civic pride was expressed most forcefully through the medium of architecture, the building revealed much about prevailing notions of the appropriate relationship between the State, law, lawyers and legal subjects. I argue that far from being of only historical significance, the internal figurations of the courthouse and courtrooms reflects a particular conception of these relationships which continues to influence the way we think about the geography of modern courts and the ideologies that underpin contemporary uses of space in the legal arena.
Contract Law in Perspective complements 'black letter' treatments of contract by looking at legal doctrine and statutes in their social, political and economic contexts. It increases students' understanding of the law of contract as well as convinces them why it is so important to us all. In addition to describing the key doctrines in the field, it explains the ideology behind them and considers the extent to which they serve the needs of the business community and consumers. The book broadens understanding and appreciation of the subject by reference to the 'big ideas' in contract theory and how these relate to practice at a level which is suitable for students.-
L Mulcahy, 'The Unbearable Lightness of Being? Shifts Towards the Virtual Trial' (2008) 35 Journal of Law and Society 464
ISBN: 9780415444323
DOI: 10.1111/j.1467-6478.2008.00447.x-
L Mulcahy, 'Architects of Justice: the Politics of Courtroom Design' (2007) 16 Social & Legal Studies 383
This article examines the implications of allowing witnesses to give evidence in trials from other locations through the medium of ‘live link’. Academic commentary on this technological aid has to date focused on the impact it has on the defendant's right to cross‐examine or the ability to judge demeanour. Whilst these issues are important, this essay focuses on a less commented on implication of live link; its impact on our conception of where and how adjudication takes place. Particular emphasis is placed on the ways in which the courtroom as the prime site of legal practice is in danger of being dematerialized and the effect this is likely to have on the legitimacy of the trial as an authentic legal and public ritual.
DOI: 10.1177/0964663907079765-
C Stychin and L Mulcahy, Legal Methods and Systems: Text and Materials (3rd edn Sweet and Maxwell 2007)
This article looks at the interface between the design of courtrooms and the notion of participatory justice. In contrast to a vision of judicial space as neutral, this article argues that understanding the factors which determine the internal design of the courtroom is crucial to a broader and more nuanced understanding of judgecraft. The use of space in the courtroom has changed significantly since custom-built courthouses first appeared, and these changes often reflect struggles for territory. In this article I focus on the ways the role of the spectator has been marginalized within the court and led to the demise of the notion of ‘public’ trial. This has been achieved through a series of design guides which ensure that participants in the trial are isolated
and surveyed. The origins of these guides can be traced to the mid-Victorian era in which the public were often conceived of as threatening and ‘dirty’.
A mini library and integrated teaching tool for legal method, English legal system and Introduction to Law courses. Legal Methods and Systems: Text & Materials: Introduces students to a range of different ways of thinking about the study of law including doctrinal, socio-legal and critical perspectives. Provides a wealth of materials and commentary, along with a series of focused questions suitable for tutorials and essays. Offers more user-friendly features including a 'key concepts' box for each chapter, suggested further reading and web sources. Includes easier examples and a vastly improved questions and problems section. Features new material on the criminal process, a case study on anti-terrorism legislation, and more comparative material.-
L Mulcahy, 'Feminist Fever? Cultures of Adversarialism in the aftermath of the Woolf Reforms' (2005) 58 Current Legal Problems 215
ISBN: 9780421965409
DOI: 10.1093/clp/58.1.215-
L Mulcahy and S Wheeler (eds), Feminist Perspectives on Contract (Routledge 2005)
This paper considers some of the implications of the most radical reforms of the civil justice system to have been introduced in the last hundred years. In particular it analyses what has happened to cultures of adversarialism in the aftermath of the Woolf reforms. The issue is pertinent, as we watch the changes introduced bed down and practitioners clam down in the wake of a raft of reforms designed in part to ensure that civil procedure becomes cheaper and faster. More important, for present purposes, are the implications of the requirement that the various parties involved in litigation alter their expectations as to how they should behave in their quest for settlement or adjudication. A number of key issues arise from the analysis. Why is it that adversarial and uncooperative tendencies remain such a dominant part of the professional identify of lawyers? Is it the case that we are merely witnessing a transitional phase from a litigation system underpinned by the adversarial ideal to one based on more cooperation? Alternatively, could it be that there is something deep-rooted about adversarial tendencies that will serve to undermine the ethos promoted by the Woolf reforms? The issues raised are of particular importance for feminist debate about how marginalized voices can be heard in the civil justice arena. Can the shift towards cultures of cooperation ever be fully achieved whist masculine ideology and methodology dominate legal practice and education?
The law of contract is ripe for feminist analysis. Despite increasing calls for the re-conceptualisation of neo-classical ways of thinking, feminist perspectives on contract tend to be marginalised in mainstream textbooks. This edited collection questions the assumptions made in such works and the ideologies that underpin them, drawing attention to the ways in which the law of contract has facilitated the virtual exclusion of women, the feminine and the private sphere from legal discourse. Contributors to this volume offer a range of ways of thinking about the subject and cover topics such as the feminine offeree, feminist perspectives on contracts in cyberspace, the forgotten world of women and contracts, restitution and feminist economic theory, the gendered power dynamics of undue influence, and the feminisation of dispute resolution.-
L Mulcahy, 'Bargaining in the shadow of the flaws: The feminisation of dispute resolution' in L Mulcahy and S Wheeler (eds), Feminist Perspectives on Contract Law (Cavendish 2004)
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L Mulcahy and J Tillotson, Contract Law in Perspective (4th edn Cavendish 2004)
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L Mulcahy, 'The limitations of love and altruism: Feminist Perspectives in contract' in L Mulcahy and S Wheeler (eds), Feminist Perspectives on Contract Law (Cavendish 2004)
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L Mulcahy, Disputing doctors: the socio-legal dynamics of complaints about medical care (Open University Press 2003)
ISBN: 978-1859417423
ISBN: 987-1-859-41742-3
ISBN: 9781859417713
ISBN: 987-1-859-41742-3
What are patient experiences of making complaints against doctors and what do they seek to achieve? How do doctors and managers respond to complaints and what do their responses reveal about the implicit tensions in the doctor-patient relationship? What is the significance of the increasing incidence of disputes for approaches to the delivery of medical care? This book looks at the dynamics of doctor-patient disputes. Reflecting on fifteen years of empirical research in the NHS it considers the contexts in which these disputes arise, the different ways in which the parties construct disputing narratives and moral identities in the course of making and defending their claims, and the extent to which existing systems for resolving disputes are sensitive to their needs. This publication is timely. Since the 1970s there has been an increasing amount of concern about the rise in complaints and medical negligence claims made by patients and their relatives. Based on research with patients, relatives, doctors and NHS managers, the book analyses how they perceive these disputes and what they seek to achieve by holding each other to account.-
L Mulcahy, 'Can Leopards Change their spots? An evaluation of the role of lawyers in medical negligence mediation' (2001) 8 International Journal of the Legal Profession 203
ISBN: 978-0335212446
DOI: 10.1080/09695950220141025-
L Mulcahy and L Summerfield, Keeping it in the Community: An Evaluation of the Use of Mediation in Disputes Between Neighbours (The Stationery Office 2001)
The role of all professional groups has shifted with industrial maturity and changes to their work pattern and identity have been particularly evident in the post-Fordist era. Whilst it has been argued that the English legal profession has been hesitant in taking the initiative in entering into new markets, on the whole established professional groups such as lawyers and medics have been exceptionally nimble in finding new jobs and adjusting as old jobs disappear. This article considers the extent to which the introduction of a mediation pilot scheme by the Department of Health has been conceived of as a threat to the professional world of solicitors who specialise in medical negligence. It explores two key issues. To what extent did the move towards co-operative inter-dependence between opposing sides encouraged by mediation pose a challenge to the normative order of these specialists? Did the privileging of clients’ narratives over a legalistic one undermine the validity of lawyers’ claims to expert knowledge?
This book reports the findings of a two year ethnographic study of community mediation in South London funded by the Nuffield Foundation.-
L Mulcahy, 'The Possibilities and Desirability of Mediator Neutrality – Towards an Ethics of Partiality?' (2001) 10 Social & Legal Studies 505
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L Mulcahy, M Selwood, L Summerfield and A Netten, Mediating Medical Negligence Claims: An Option for the Future? (The Stationery Office 2000)
ISBN: 9780117025530
This article draws on an empirical study of community mediation to question the possibility and desirability of mediator neutrality. It argues that, although the notion of neutrality is central to discussions of adjudication and mediation, debate on the topic remains intellectually flawed and empirically problematic. Emphasis on the aspirational nature of neutrality encourages us to ignore the suggestion that rather than facilitating fair process and outcome the standard of neutrality could serve to exacerbate existing inequalities between disputants. When discussed in the context of mediation the ideal becomes even more suspect as mediation promises 'alternatives' to the inadequacies of court-based adjudication. This article explores the questions raised by a group of mediators who rejected the possibility and desirability of mediation in favour of a more reflexive approach to third-party intervention in disputes. It suggests that, rather than aspiring to the empty goal of neutrality, we should be debating the possibility of partiality as an ethical standard to govern dispute resolution.
The findings of an evaluation of the National Health Service (NHS) mediation pilot scheme, set up in response to criticisms of current methods for handling medical negligence claims.-
L Mulcahy, ''Threatening Behaviour: The Challenge posed by medical negligence claims' in M Freeman and A Lewis (eds), Law and Medicine: Current Legal Issues (Oxford University Press 2000)
ISBN: 9780113222681
This chapter considers the threat to the medical profession posed by medical negligence claims. It develops an important argument made by Dingwall that the threat of litigation is best understood in terms of the symbolic challenge that this form of consumer activism poses to medical autonomy. The chapter is in three main parts. The first section reviews what is known about medical negligence claims. The second section draws on data collected for the evaluation which shed some new light on the threat posed by claims. The third section considers the symbolic threat of medical negligence and argues that it is this factor more than any other which explains the reaction of doctors to medical negligence.-
L Mulcahy, 'The Devil and the Deep Blue Sea? A Critique of the Ability of Community Mediation to Suppress and Facilitate Participation in Civil Life' (2000) 27 Journal of Law and Society 138
ISBN: 978-0198299189
DOI: 10.1111/1467-6478.00149-
L Mulcahy and M Rosenthal, ''Beyond blaming and perfection - A multi-dimensional approach to medical mishaps' in M rosenthal, L Mulcahy and S Lloyd-Bostock (eds), Medical Mishaps: Pieces of the Puzzle (Open University Press 1999)
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L Mulcahy, ''Patient orientated approaches to dealing with medical negligence claims' in M Rosenthal, L Mulcahy and S Lloyd-Bostock (eds), Medical Mishaps: Pieces of the Puzzle (Open University Press 1999)
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H Wallace and L Mulcahy, Cause for Complaint? An evaluation of the effectiveness of the NHS Complaints Procedure (The Public Law Project 1999)
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J Allsop and L Mulcahy, 'How doctors react to complaints - coping strategies and identities in crisis' in M rosenthal, L Mulcahy and S Lloyd-Bostock (eds), Medical Mishaps: Pieces of the Puzzle (Open University Press 1999)
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M Rosenthal, L Mulcahy and S Lloyd-Bostock (eds), Medical Mishaps: Pieces of the Puzzle (Open University Press 1999)
This article revisits debate between academics and practitioners about the potential of community mediation. While mediation evangelicals make bold claims about the possibility of mediation helping to rebuild communities, academic critics have been suspicious of such contentions and claimed instead that mediation has provided just another route through which the state can interfere in the life of its citizens. It is argued here that debate on the topic has been clouded by unduly high expectations of disputes as agents of social change. Their importance has been understood by reference to their ability to rebuild communities or their potential to become test cases. It is argued here that mediated disputes make much more modest challenges to state authority but that they can be aided in this by the intervention of mediators prepared to take a pragmatic approach to the unachievable ideal of neutrality. The article does not conceive of community mediation as an alternative of the state or its agent. Rather, it suggests that mediators can be embedded within both worlds and act as message-bearers between them.
ISBN: 978-0335202591
ISBN: 978-0335202591
In July 1997, the Public Law Project received funding from the National Lottery Charities Board to carry out the first, independent, national evaluation of the operation and effectiveness of the NHS complaints procedure introduced in April 1996. PLP’s aim has been to evaluate the procedure from the perspective of health service users, looking at issues of fairness and independence, and complaints’ satisfaction with both the handling and outcome of their complaints. This report presents the results and conclusions of the research.
ISBN: 978-0335202591
This book explores what we know about the incidence, causes and aftermath of medical mishaps. Increasingly the medical profession is being expected to review the performance of doctors more rigorously and systematically and to adopt proactive approaches to the management of risk. Little is known about how often medical mishaps occur, the proportion which are preventable and the impact of the mishap on those involved. Contributors to this volume are all experts in their field who can reveal something about medical mishap puzzles from a UK and international perspective. Medical mishaps are traced from their genesis and cause through to the impact they have on doctors, patients, managers, educators and those responsible for the resolution of complaints and medical negligence disputes arising from them. This volume is unique in bringing together a number of different voices. The contributions are multi-disciplinary and report both empirical studies of these phenomena as well as the experiences of those who have to deal with medical mishaps on a day to day basis.-
L Mulcahy, 'Sliding Scales of Justice - A Cause for Complaints?' in M Harris and M Partington (eds), Administrative Justice in the 21st Century (Hart Publishing 1999)
ISBN: 9780335202584
In this paper I consider an issue which has long troubled lawyers: what standards should govern grievance procedures? While emphasis has traditionally been places on considering this question in the context of the courts and judicial review I will explore what is considered appropriate in relation to internal review of decisions, in particular the review of decisions in in-house complaints procedures. This particular topic has been afforded little status by academics in their discussion of administrative law. Despite this more citizens will have experience of complaints systems than have even heard of judicial review and the subject is one which is likely to increase in importance as we move into the twenty first century and more emphasis is placed, post-Woolf, on local and less formal resolution of disputes.-
J Allsop and L Mulcahy, ''Deconstructing Professional Identity: Doctors' Responses to Complaints' in V Oligatti, L Orzack and M Saks (eds), Professions, Identity, and Order in Comparative Perspective (Onati: International Institute for the Sociology of Law 1998)
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J Allsop and L Mulcahy, 'A Half Open Door: A Commentary on NHS Complaints Systems?' (1998) 3 Contemporary Issues in Law 170
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ISBN: 978-1-9013-6266-4
ISBN: 9788489933002
Complaint systems within public sector services are important for two main reasons. They provide a source for the redress of grievances and they enable those who provide services to be held accountable. Indeed, it has been argued that in a healthy democracy, barriers to complaining should be minimised. The need for an effective complaint system is particularly crucial in the public sector. Public services are often in a monopoly position and the option of exiting a service is rarely available for the service-user. Considerable inequalities of bargaining power between service-provider and service-user are the norm and these are further exacerbated when a service based on particular expertise is being provided, as is the case in the NHS. Accountability in public services is often indirect and remote. The government departments, health authorities and other ad hoc agencies which make decisions and manage services may have little contact with those who use their services. Moreover, many public services are provided for those who are among the most vulnerable, frail and disadvantaged members of society. As the scope of government intervention has increased, and as matters of service provision have been devolved to quasi-governmental institutions, so the importance of mechanisms for redress and accountability has increased.
In this paper, we examine complaint systems within the NHS and the extent to which these are open or closed. We focus particularly on complaint systems related to medical work. As professionals, doctors, and indeed other professional workers, are also subject to regulation through the courts under tort law and through their professional associations in relation to professional practice. These systems offer alternative ways for the citizen to complain and different forms of accountability. They are interconnected with NHS systems in a variety of ways. Although passing reference will be made to these, it is beyond the scope of this paper to examine these interconnections fully. Neither do we examine whether the systems outside the NHS are open or closed, although some of the general arguments we make could be applied to these other regulatory systems.