Legal Architecture : Justice, Due Process and the Place of
Law (Routledge : 2010)
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.
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Carl Stychin and Linda Mulcahy, Legal Methods and Systems:
Text and Materials London: Sweet and Maxwell (4th ed. 2010)
The
fourth edition of this cases and materials book published in September 2010 aims
to introduce law students to traditional foundations of legal reasoning
alongside socio-legal and critical material which questions the canon. In
addition to the material in previous editions the most recent version of this
cases and materials book reflects on ongoing discussion about human rights, the
changing landscape of dispute resolution and diversity in the legal profession;
the reform of the tribunal system; the opening of the Supreme Court and the ways
in which the insights of comparative lawyers have resonance in contemporary
debates aout the multi-cultural nature of our society
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Mulcahy, L., (2008) Contract Law in Perspective, 5th
edition, Routledge-Cavendish, London.
Contract
Law in Perspective complements 'black letter' treatments of contract
by looking at legal doctrine and statutes in their social, political
and economic contexts. In addition to examining 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. By taking the ‘big ideas’ in contract theory and relating
these to practice, the book hopes to broaden understanding and
appreciation of the contemporary relevance subject.
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Mulcahy, L., and S. Wheeler (2005) Feminist
Perspectives on Contract, Cavendish Publishing, London
This
edited collection questions the assumptions about feminist
perspectives on contract law made in mainstream scholarship 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.
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Mulcahy, L., (2003) Disputing Doctors: The
socio-legal dynamics of complaints about doctors, Open
University Press, Buckingham.
This
book looks at the dynamics of doctor-patient disputes. Reflecting on
fifteen years of empirical research on disputes 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. 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.
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(with Tatiana Flessas) 'Limiting Law: Art in the Street and Street in the Art'
Law, Culture and the Humanities (2016) pp.1-23
Conventional legal responses to street
art have tended to characterize it as a problem that is best dealt regulated
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.
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'Docile Suffragettes? Resistance to Police Photography and
the Possibility of Object–Subject Transformation' Feminist Legal Studies
(April 2015)
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.
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'Watching Women: What Illustrations of Courtroom Scenes Tell
Us about Women and the Public Sphere in the Nineteenth Century' Journal of
Law and Society 1 (2015) pp.53-73
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.
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(with David Sugarman) 'Introduction: Legal Life Writing and
Marginalized Subjects and Sources' Journal of Law and Society 1 (2015)
pp.1-6
'The Market for Precedent: Shifting Visions of the Role of
Clinical Negligence Claims and Trials' Medical Law Review (2014) 22 (2)
pp.274-290
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.
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'I'm Not Watching I'm Waiting: the Construction of Visual
Codes about Womens' Role as Spectators in the Trial in Nineteenth Century
England' Legal Information Management (2014) 14 (1) pp.22-26
Accounts of the interface between law, gender and modernity have tended to stress the many ways in which women experienced the metropolis differently from men in the nineteenth century. Considerable attention has been paid to the notion of separate spheres and to the ways in which the public realm came to be closely associated with the masculine worlds of productive labour, politics, law and public service. Much art of the period draws our attention to the symbiotic relationship between representations of gender and prevailing notions of their place. Drawing on well known depictions of women onlookers in the trial in fine art, this essay by Linda Mulcahy explores the ways in which this genre contributed to the disciplining of women in the public sphere and encouraged them to go no further than the margins of the law court.
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Putting the Defendant in Their Place: Why Do We
Still Use the Dock in Criminal Proceedings?” (2013) British
Journal of Criminology 53 (6), pp. 1139-1156
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.
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'Four reflections on "The art of justice: The judge's
perspective"' Leslie J. Moran, Gary Watt, Linda Mulcahy and David Isaac. Law
and Humanities 2013, 7(1), 113-128.
'Imagining Alternative Visions of Justice: An Exploration of
the Controversy Surrounding Stirling Lee's Depictions of Justitia in
Nineteenth-Century Liverpool' Law, Culture and the Humanities (2013) 9
(2) pp.311-329
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.
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'The Collective Interest in Private Dispute Resolution'
Oxford Journal of Legal Studies 2012
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.
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'Baird Textile Holdings v Marks and Spencer Plc' (with
Cathy Andrews) in Feminist Judgments: From Theory to Practice edited by
Rosemary hunter, Clare McGlynn and Erika Rackley, Oxford: Hart Publishing 2010
Whilst
feminist legal scholarship has thrived within universities and in
some sectors of legal practice, it has yet to have much impact
within the judiciary or on judicial thinking. Thus, while feminist
legal scholarship has generated comprehensive critiques of existing
legal doctrine, there has been little opportunity to test or apply
feminist knowledge in practice, in decisions in individual cases. In
this book, a group of feminist legal scholars put theory into
practice in judgment form, by writing the 'missing' feminist
judgments in key cases. Linda Mulcahy and Cathy Andrew's
contribution to this book is a re-thinking of the judgment in Baird
Textile Holdings v Marks and Spencer Plc and is accompanied by a
commentary on the case and new judgment by John Wightman.
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'Fortresses, Cathedrals and Monuments to law:
What does the architecture of the law court tell us about the role
of law in sciety over time' Supreme Court History Program
Yearbook 2009, Supreme Court of Queensland (2010)
Bondy, Varda and Mulcahy, Linda, (2009) Mediation and judicial review,
Public Law Project.
The aim of the research reported here was 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 was 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 were
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 litigants flexibility, low costs and speed. It is argued that
claims as to the value of mediation need to be examined in light of the
realities of judicial review litigation.
"…provide[s] an illuminating picture of how judicial review
claims are run and resolved by lawyers, judges and mediators. They raise the
curtain on the world of pre-hearing settlements and provide a surprisingly
optimistic picture of the ability fo lawyers to come to staisfactory outcomes
without the intervention of mediators and judges. The Public Law project, and
the Nuffield Foundation which funded the research, deserve high praise for the
quality of the papers and the comprehensive nature of the research'.
Toby Fischer in Judicial Review,
2009
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Mulcahy, L., (2008) ‘The unbearable lightness of
being – Shifts towards the virtual trial’, Journal of Law and Society,
Vol. 35(4) pp.464-489.
Shortlisted for the 2009 Socio-Legal Studies Association article
prize. 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 dematerialised and the effect this is likely to have
on the legitimacy of the trial as an authentic legal and public
ritual.
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Mulcahy, L., (2008) ‘Architectural Precedent: Manchester
Assize Courts and Monuments to law in the mid Victorian era’, 19 Kings Law
Journal pp.525-550
This article looks at a much-neglected topic in accounts of the
modern legal system: the architecture of law courts. It is argued
that a closer examination of radical changes to the ways in which
the internal space of the courthouse and courtroom were organised in
the mid-nineteenth century can tell us much about how lawyers came
to dominate the trial. The essay focuses on the design and planning
of the Manchester Assize Courts, a building which can accurately be
described as one of the first, if not the first, modern courthouse.
It considers how the courthouse came to symbolise new ideas about
the civic sphere, the increased reliance on the segregation of
participants in the trial, and the role of law in Victorian society.
Particular attention is placed on the link between new social and
cultural movements and the architect, Alfred Waterhouse.
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Mulcahy, L., (2007) ‘Architects of
Justice: the politics of court house design’, Social and
Legal Studies, Vol. 16(3) pp.383-403.
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 are
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 began to be built and these changes
often reflect struggles for territory. In this essay I focus on the
ways in 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-Victoria era in
which the public were often conceived of as threatening and ‘dirty’.
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Mulcahy, L., (2005) ‘Feminist Fever?
Cultures of Adversarialism in the aftermath of the Woolf
Reforms’, Current legal Problems, Oxford University Press,
Oxford vol.58 edited by Jane Holder and Colm O’Cinneide,
pp.215-234.
