The body of research on the take-up of social benefits is growing, but rarely focuses on universal cash benefits, especially in the field of long-term care. This paper is concerned with the long-term care (LTC) allowance in Austria, a universal cash benefit paid to those in need of LTC on seven different levels of dependency. It investigates whether take-up and distribution of the benefit reflect need in terms of age structure and health status of the population, and examines whether local variations in the distribution of benefits can be explained with socio-demographic variables. Combining administrative data on recipients and socio-demographic data on the municipal level with health information shows that higher levels of education and a higher share of foreigners are associated with a lower share of recipients, while a lower average household size increases the share of recipients. Overall, these variations are much stronger for lower levels of care needs than for higher ones. The results suggest variations in take-up that are determined either by non-application (in particular among lower levels of care needs) or discretion and potentially discrimination in the process of claiming the benefit.

A growing body of literature has emphasised the role of equity as a body of second order principles. These scholars argue that what makes equity distinct is that it assumes a particular outcome at common law, but then controls or disables one party's insistence on her legal entitlements. Where do equitable bars to relief fit within such accounts? This article argues that equitable bars to relief fit comfortably with the view that equity is second order law. This is for a simple reason: equity prevents the unjust exercise of legal entitlements. However, equitable rules are also amenable to being exercised unjustly. To prevent equitable rules being abused, equitable doctrines require some limited discretion to be built in. If this were not the case, then the general law would require a third set of rules to control equity and then a fourth set of rules to control those rules (ad infinitum).

This article argues that the European Central Bank (ECB), supported by the Court of Justice of the European Union (CJEU), can be perceived to have functionally softened the no sovereign lender of last resort (LOLR) rule originally implied by Articles 123 and 125 of the Treaty on the Functioning of the European Union (TFEU) towards a rule-with-exceptions and, increasingly, towards a presumption: The ECB will act as sovereign LOLR to a constituent Member unless and until that Member is insolvent or unwilling to cooperate with measures designed to restore market confidence. This functional moderation of a rule, from an ex ante specification of an outcome towards the exercise of greater choice at the point of application, carries with it contentious normative questions. To motivate discussion thereof beyond a largely ahistorical, non-indexical, rules versus discretion debate, the rules of the currency union are located within the genealogy of international exchange rate regimes. The “convertibility” rule of the gold standard and the “parity” rule of the Bretton Woods system are contrasted with their Eurozone equivalent. A consequentialist standpoint is sketched out from which the interventions of the ECB, in light of their available alternatives, appear broadly consistent with welfarist cost-benefit analysis and less normatively worrisome than by reference to evaluative criteria that emphasize a narrowly rule-bound conception of the rule of law.

Automated decision-making takes up an increasingly significant place in the administrative state. This article presents a conception of discretion that is helpful for evaluating the proper place of algorithms in public decision-making. I argue that the algorithm itself is not a site of discretion. The threat is that automated decision-making alters the relationships between traditional actors in a way that can cut down discretion and human commitment. Algorithmic decision-makers can serve to fetter the discretion that the legislature and the populace expect to be exercised. We must strive to maintain discretion, moral agency, deliberative ideals, and human commitment through the system that surrounds the use of an algorithm and to develop a new expertise that can retain and exercise the expected discretion. Backing this argument are traditional legal constraints, public expectations, and administrative law principles, tied together through the organizing principle of discretion.

Tasked with enforcing criminal law, public prosecutors worldwide enjoy broad discretion. Existing literature on prosecutorial discretion and accountability tends to discuss the regulation of prosecutorial discretion or analyse the influence of the procedural environment in which public prosecutors operate. This paper focuses on occupational culture as an important factor affecting prosecutorial decisions. It draws particular attention to an understudied aspect of prosecutors’ professional identity: legitimacy and, specifically, self-legitimacy, ie the belief public prosecutors have in their own legitimacy to make decisions in individual cases. The paper presents research findings from direct observations and interviews which reveal a sense of a loss of self-legitimacy amongst Crown Prosecution Service (CPS) staff due to the constant monitoring of their decisions by colleagues and managers. This all-pervasive managerialism, paradoxically, undermines the very legitimacy (and, relatedly, transparency) which the CPS has had to work so hard to develop since its inception.

This article discusses the techniques—‘hallmarks’—that the EU courts have developed to ensure that judicial review remains effective in competition law. These hallmarks can be grouped into three main categories. Some of them concern the interpretation of substantive law, namely the definition of legal tests and their consistent use over time. Some, the need for administrative action to rely on the best available evidence (which comprises both reliance on the expert consensus and the careful examination of the economic and legal context). A third category relates to the scrutiny exercised over the policy statements through which the European Commission chooses to constrain its discretion.

This paper demonstrates that, in a large class of linear-quadratic models with rational expectations, losses due to time-inconsistency problems can be avoided, as the commitment solution can be implemented by a policy-maker who acts under discretion. We focus on two approaches. First, we show that a non-Markovian, reputational equilibrium that implements the commitment solution always exists. Second, we show how delegation to a policy-maker with an additional objective for the policy instrument can be used to implement the commitment solution via a standard discretionary Markov equilibrium. Implementation is facilitated by the fact that the commitment outcome can be attained irrespective of the weight that the policy-maker assigns to the additional target. Using the standard new Keynesian model as an example, we study the dynamics of the economy under optimal additional output targets as well as optimal interest-rate targets for central banks.

This reflective article maps out the findings of a socio-legal study on language use in administrative settings in Belgium’s Dutch-language area. It explains how the author arrived at a socio-legal approach to this study object. Thereafter the article focuses on the methods used and the conceptual framework. It discusses the various methodological choices regarding data collection and the use of methods stemming from anthropology in this study. It also illustrates how anthropological literature on concepts such as discretion and multiple embeddedness provide conceptual tools for building a framework around which to structure and present the empirical data.

The last part of the article sketches the findings of this socio-legal study. Drawing on the conceptual framework, it illustrates that even when practice deviates from statutory law, the relationship between the law and the practice cannot be easily captured in a dichotomic relationship. The author furthermore deduces some relevant findings in light of general human rights. The article concludes with some reflections on research that combines law and anthropology, both as separate disciplines and as a combined endeavor.

Prosecutors play a decisive role in contemporary criminal justice. Their decisions greatly influence the output of the system, as well as the behaviour of other criminal justice institutions. By harnessing the power to filter, select and segment the work of criminal justice, prosecutors provide structure to an otherwise unbalanced field. They thus play a key structuring role. However, the prosecutors’ position and the problems that emanate from it have mostly been studied in terms of their power and discretion. We contend that this approach neglects the core problems and challenges connected to the prosecutorial function in contemporary criminal justice and offer a reconstruction of the formal and informal influences that shape the behaviour of prosecutors in providing for structure.

The exercise of administrative discretion by street-level workers plays a key role in shaping citizens’ access to welfare and employment services. Governance reforms of social services delivery, such as performance-based contracting, have often been driven by attempts to discipline this discretion. In several countries, these forms of market governance are now being eclipsed by new modes of digital governance that seek to reshape the delivery of services using algorithms and machine learning. Australia, a pioneer of marketisation, is one example, proposing to deploy digitalisation to fully automate most of its employment services rather than as a supplement to face-to-face case management. We examine the potential and limits of this project to replace human-to-human with ‘machine bureaucracies’. To what extent are welfare and employment services amenable to digitalisation? What trade-offs are involved? In addressing these questions, we consider the purported benefits of machine bureaucracies in achieving higher levels of efficiency, accountability, and consistency in policy delivery. While recognising the potential benefits of machine bureaucracies for both governments and jobseekers, we argue that trade-offs will be faced between enhancing the efficiency and consistency of services and ensuring that services remain accessible and responsive to highly personalised circumstances.