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"CORPORATION LAW"
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Corporate friction : how corporate law impedes American progress and what to do about it
\"Corporate law in the United States requires directors to manage firms in the interests of shareholders, which means never sacrificing profits in service of other stakeholders or interests. In this timely, groundbreaking book, David Yosifon argues that this rule of \"shareholder primacy\" is logically, ethically, and practically unsound, and should be replaced by a new standard that compels directors of our largest corporations to manage firms in a socially responsible way. In addition to summarizing existing debates on the issue-and giving special attention to the Supreme Court's decision in Citizen's United-Yosifon explores the problem of corporate patriotism and develops a novel approach to the relationship between corporate law and consumer culture. The book's technical acumen will appeal to experts, while its engaging prose will satisfy anyone interested in what our corporate law does, and what it should do better\"-- Provided by publisher.
Book
Lawlessness and Economics
How can property rights be protected and contracts be enforced in countries where the rule of law is ineffective or absent? How can firms from advanced market economies do business in such circumstances? InLawlessness and Economics, Avinash Dixit examines the theory of private institutions that transcend or supplement weak economic governance from the state.
In much of the world and through much of history, private mechanisms--such as long-term relationships, arbitration, social networks to disseminate information and norms to impose sanctions, and for-profit enforcement services--have grown up in place of formal, state-governed institutions. Even in countries with strong legal systems, many of these mechanisms continue under the shadow of the law. Numerous case studies and empirical investigations have demonstrated the variety, importance, and merits, and drawbacks of such institutions.
This book builds on these studies and constructs a toolkit of theoretical models to analyze them. The models shed new conceptual light on the different modes of governance, and deepen our understanding of the interaction of the alternative institutions with each other and with the government's law. For example, one model explains the limit on the size of social networks and illuminates problems in the transition to more formal legal systems as economies grow beyond this limit. Other models explain why for-profit enforcement is inefficient. The models also help us understand why state law dovetails with some non-state institutions and collides with others. This can help less-developed countries and transition economies devise better processes for the introduction or reform of their formal legal systems.
eBook
Corporate Sovereignty
Refinery explosions. Accounting scandals. Bank meltdowns. All of these catastrophes-and many more-might rightfully be blamed on corporations. In response, advocates have suggested reforms ranging from increased government regulation to corporate codes of conduct to stop corporate abuses. Joshua Barkan writes that these reactions, which view law as a limit on corporations, misunderstand the role of law in fostering corporate power.
InCorporate Sovereignty, Barkan argues that corporate power should be rethought as a mode of political sovereignty. Rather than treating the economic power of corporations as a threat to the political sovereignty of states, Barkan shows that the two are ontologically linked. Situating analysis of U.S., British, and international corporate law alongside careful readings in political and social theory, he demonstrates that the Anglo-American corporation and modern political sovereignty are founded in and bound together through a principle of legally sanctioned immunity from law. The problems that corporate-led globalization present for governments result not from regulatory failures as much as from corporate immunity that is being exported across the globe.
For Barkan, there is a paradox in that corporations, which are legal creations, are given such power that they undermine the sovereignty of states. He notes that while the relationship between states and corporations may appear adversarial, it is in fact a kind ofdoublingin which state sovereignty and corporate power are both conjoined and in conflict. Our refusal to grapple with the peculiar nature of this doubling means that some of our best efforts to control corporations unwittingly reinvest the sovereign powers they oppose.
eBook
Challenging boardroom homogeneity : corporate law, governance, and diversity
\"Drawing on semi-structured interviews with corporate board directors in Norway and documentary content analysis of corporate securities filings in the United States, Challenging Boardroom Homogeneity empirically investigates two distinct regulatory models designed to address diversity in the boardroom: quotas and disclosure. The author's study of the Norwegian quota model demonstrates the important role diversity can play in enhancing the quality of corporate governance, while also revealing the challenges diversity mandates pose. His analysis of the US regime shows how a disclosure model has led corporations to establish a vocabulary of 'diversity'. At the same time, the analysis highlights the downsides of affording firms too much discretion in defining that concept. This book deepens ongoing policy conversations and offers new insights into the role law can play in reshaping the gendered dynamics of corporate governance cultures\"-- Provided by publisher.
Book
THE UNTENABLE CASE FOR PERPETUAL DUAL-CLASS STOCK
The desirability of a dual-class structure, which enables founders of public companies to retain a lock on control while holding a minority of the company's equity capital, has long been the subject of a heated debate. This debate has focused on whether dual-class stock is an efficient capital structure that should be permitted at the time of initial public offering (\"IPO\"). By contrast, we focus on how the passage of time since the IPO can be expected to affect the efficiency of such a structure. Our analysis demonstrates that the potential advantages of dual-class structures (such as those resulting from founders' superior leadership skills) tend to recede, and the potential costs tend to rise, as time passes from the IPO. Furthermore, we show that controllers have perverse incentives to retain dual-class structures even when those structures become inefficient over time. Accordingly, even those who believe that dual-class structures are in many cases efficient at the time of the IPO should recognize the substantial risk that their efficiency may decline and disappear over time. Going forward, the debate should focus on the permissibility of finite-term dual-class structures—that is, structures that sunset after a fixed period of time (such as ten or fifteen years) unless their extension is approved by shareholders unaffiliated with the controller. We provide a framework for designing dual-class sunsets and address potential objections to their use. We also discuss the significant implications of our analysis for public officials, institutional investors, and researchers.
Journal Article
Corporations are people too : (and they should act like it)
\"Are corporations people? The U.S. Supreme Court launched a heated debate when it ruled in Citizens United that corporations can claim the same free speech rights as humans. Should corporations be able to claim rights of free speech, religious conscience, and due process? Kent Greenfield provides an answer: Sometimes. With an analysis sure to challenge the assumptions of both progressives and conservatives, Greenfield explores corporations' claims to constitutional rights and the foundational conflicts about their obligations in society. He argues that a blanket opposition to corporate personhood is misguided, since it is consistent with both the purpose of corporations and the Constitution itself that corporations can claim rights at least some of the time. The problem with Citizens United is not that corporations have a right to speak, but for whom they speak. The solution is not to end corporate personhood but to require corporations to act more like citizens\"--Book jacket.
Book
The Constitutional Protection of Capitalism
In 1945 a Labour government deployed Britain’s national autonomy and parliamentary sovereignty to nationalise key industries and services such as coal, rail, gas and electricity, and to establish a publicly-owned National Health Service. This monograph argues that constitutional constraints stemming from economic and legal globalisation would now preclude such a programme. It contends that whilst no state has ever, or could ever, possess complete freedom of action, nonetheless the rise of the transnational corporation means that national autonomy is now siginificantly restricted. The book focuses in particular on the way in which these economic constraints have been nurtured, reinforced and legitimised by the creation on the part of world leaders of a globalised constitutional law of trade and competition. This has been brought into existence by the adoption of effective enforcement machinery, sometimes embedded within the nation states, sometimes formed at transnational level. With Britain enmeshed in supranational economic and legal structures from which it is difficult to extricate itself, the British polity no longer enjoys the range and freedom of policymaking once open to it. Transnational legal obligations constitute not just law but in effect a de facto supreme law entrenching a predominantly neoliberal political settlement in which the freedom of the individual is identified with the freedom of the market. The book analyses the key provisions of WTO, EU and ECHR law which provide constitutional protection for private enterprise. It dwells on the law of services liberalisation, public monopolies, state aid, public procurement and the fundamental right of property ownership, arguing that the new constitutional order compromises the traditional ideals of British democracy.
eBook
CORPORATE FINANCE FOR SOCIAL GOOD
Corporations are under pressure to use their outsized power to benefit society, but this advocacy is unlikely to result in meaningful change because corporate law’s incentive structure rewards fiduciaries who maximize shareholder wealth. Therefore, this Essay proposes a way forward that works within the wealth-maximization framework and yet could result in dramatic social change. The idea is simple: Use private debt markets to provide incentives for public-interested corporate action. Specifically, individuals who value prosocial corporate decisions could finance them by contributing to corporate social responsibility (CSR) bonds that would offset the corporation’s implementation costs. To provide an incentive to depart from wealth maximization, the bond would stipulate that the contribution would be forgiven when the decision is implemented by the corporation—a key difference from existing prosocial financial instruments.
More broadly, the insight that the individuals with the strongest interest in seeing corporations act responsibly are not always the company’s shareholders has consequences for corporate law and corporate governance. In particular, it cautions that we should recognize the limits of shareholder activism to achieve socially optimal levels of corporate responsibility. The more difficult questions are whether and how to reorient our corporate law system away from shareholders and toward other constituencies. As that project forges on, this Essay describes a tool that would enable stakeholders to influence corporate behavior without any delay.
Journal Article