Erin A. O'Hara and Larry E. Ribstein
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195312898
- eISBN:
- 9780199871025
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195312898.003.0006
- Subject:
- Political Science, American Politics
This chapter shows that the corporate law market is simply a part of the broader market for law discussed in this book. The corporate choice-of-law rule known as the “internal affairs doctrine” (IAD) ...
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This chapter shows that the corporate law market is simply a part of the broader market for law discussed in this book. The corporate choice-of-law rule known as the “internal affairs doctrine” (IAD) did not spring from forces unique to corporations, but rather from the general law market forces described in this book. This chapter first discusses the demand for and supply of corporate law. It then contrasts enforcement of the IAD with enforcement of other party choices of law. The chapter continues with a demonstration that the corporate law market is more multifaceted than most scholars recognize, reaching into securities regulation and into closely held as well as public held firms, and is rapidly developing in the European Union. The chapter discusses how the corporate law market responds to supply and demand forces. The chapter concludes with an exploration of the legal implications of our analysis.Less
This chapter shows that the corporate law market is simply a part of the broader market for law discussed in this book. The corporate choice-of-law rule known as the “internal affairs doctrine” (IAD) did not spring from forces unique to corporations, but rather from the general law market forces described in this book. This chapter first discusses the demand for and supply of corporate law. It then contrasts enforcement of the IAD with enforcement of other party choices of law. The chapter continues with a demonstration that the corporate law market is more multifaceted than most scholars recognize, reaching into securities regulation and into closely held as well as public held firms, and is rapidly developing in the European Union. The chapter discusses how the corporate law market responds to supply and demand forces. The chapter concludes with an exploration of the legal implications of our analysis.
Mark J. Roe
- Published in print:
- 2004
- Published Online:
- September 2007
- ISBN:
- 9780199269761
- eISBN:
- 9780191710087
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199269761.003.0013
- Subject:
- Business and Management, Corporate Governance and Accountability
This chapter questions the power of law in solving CG problems and maintains that there are societal and political forces that are likely to shape governance structures irrespective of any ...
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This chapter questions the power of law in solving CG problems and maintains that there are societal and political forces that are likely to shape governance structures irrespective of any regulation. In particular, the most common configuration of those forces around the world tends to reinforce concentrated ownership no matter what laws are adopted to protect minority shareholders. The chapter presents a new regression analysis of a wide database on political indicators and ownership concentration in sixteen major countries, which supports the conjecture that political variables, in particular the degree of employment protection and trade union strength, are strong inverse correlates of ownership separation and the diffusion of public companies.Less
This chapter questions the power of law in solving CG problems and maintains that there are societal and political forces that are likely to shape governance structures irrespective of any regulation. In particular, the most common configuration of those forces around the world tends to reinforce concentrated ownership no matter what laws are adopted to protect minority shareholders. The chapter presents a new regression analysis of a wide database on political indicators and ownership concentration in sixteen major countries, which supports the conjecture that political variables, in particular the degree of employment protection and trade union strength, are strong inverse correlates of ownership separation and the diffusion of public companies.
Mark J. Joe
- Published in print:
- 2006
- Published Online:
- October 2011
- ISBN:
- 9780199205301
- eISBN:
- 9780191695612
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199205301.003.0027
- Subject:
- Business and Management, Corporate Governance and Accountability, Business History
This chapter demonstrates why the data indicates that the quality-of-corporate-law argument, although it explains transition economies nicely, is over-stated for several of the world's richest ...
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This chapter demonstrates why the data indicates that the quality-of-corporate-law argument, although it explains transition economies nicely, is over-stated for several of the world's richest nations. In too many of them, even with good shareholder protection, stock can be sold, but ownership does not separate from control. Based on the data, several nations have good corporate law, but not much diffusion and separation. These nations also have a high potential for managerial agency costs: relatively weaker product market competition and relatively stronger political pressures on managers to disfavour shareholders.Less
This chapter demonstrates why the data indicates that the quality-of-corporate-law argument, although it explains transition economies nicely, is over-stated for several of the world's richest nations. In too many of them, even with good shareholder protection, stock can be sold, but ownership does not separate from control. Based on the data, several nations have good corporate law, but not much diffusion and separation. These nations also have a high potential for managerial agency costs: relatively weaker product market competition and relatively stronger political pressures on managers to disfavour shareholders.
Colleen A. Dunlavy
- Published in print:
- 2004
- Published Online:
- September 2007
- ISBN:
- 9780199251902
- eISBN:
- 9780191719059
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199251902.003.0003
- Subject:
- Business and Management, Business History
Although historians have explored changes both in the way that American corporations were created in the 19th century and in theories of the corporation, very little is known about the history of ...
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Although historians have explored changes both in the way that American corporations were created in the 19th century and in theories of the corporation, very little is known about the history of corporate governance before the 20th century. Most historians assume that the power of individual shareholders has always been proportional to their investment (based on the one-vote-per-share voting rules so familiar in the 20th century), and therefore that large shareholders have always held the preponderance of power. This chapter suggests that this essentially timeless view of the distribution of power among American shareholders is simply wrong — that voting rules once routinely curbed the power of large shareholders — and that the failure to appreciate these (distinctively American) changes in the governance of corporations over the middle decades of the 19th century has, among other things, impoverished the understanding of late 19th-century debates about the nature of corporations.Less
Although historians have explored changes both in the way that American corporations were created in the 19th century and in theories of the corporation, very little is known about the history of corporate governance before the 20th century. Most historians assume that the power of individual shareholders has always been proportional to their investment (based on the one-vote-per-share voting rules so familiar in the 20th century), and therefore that large shareholders have always held the preponderance of power. This chapter suggests that this essentially timeless view of the distribution of power among American shareholders is simply wrong — that voting rules once routinely curbed the power of large shareholders — and that the failure to appreciate these (distinctively American) changes in the governance of corporations over the middle decades of the 19th century has, among other things, impoverished the understanding of late 19th-century debates about the nature of corporations.
Margaret M. Blair
- Published in print:
- 2004
- Published Online:
- September 2007
- ISBN:
- 9780199269761
- eISBN:
- 9780191710087
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199269761.003.0003
- Subject:
- Business and Management, Corporate Governance and Accountability
This chapter criticizes current contractarian views of the firm in law and economics, reminding that the forgotten merit of the corporate form of enterprise is precisely the separation between ...
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This chapter criticizes current contractarian views of the firm in law and economics, reminding that the forgotten merit of the corporate form of enterprise is precisely the separation between individual investors/claimants and the firm as a juridical person and separate entity, that is not ‘owned’ by either investors, nor managers, nor any other participant in the enterprise. Furthermore, it is argued — and corroborated with historical evidence on the emergence of corporate law in the US and on the case of Singer — that shareholders themselves ‘are better off because they have, in the corporation, a mechanism for committing capital to an enterprise and yielding control rights to directors almost irrevocably’. In other terms, the separation of ownership and control, rather than being ‘a problem’ and in spite of entailing some costs, is the very virtue of the corporate form. The chapter concludes with a review of implications for devising effective institutions, especially in transition economies.Less
This chapter criticizes current contractarian views of the firm in law and economics, reminding that the forgotten merit of the corporate form of enterprise is precisely the separation between individual investors/claimants and the firm as a juridical person and separate entity, that is not ‘owned’ by either investors, nor managers, nor any other participant in the enterprise. Furthermore, it is argued — and corroborated with historical evidence on the emergence of corporate law in the US and on the case of Singer — that shareholders themselves ‘are better off because they have, in the corporation, a mechanism for committing capital to an enterprise and yielding control rights to directors almost irrevocably’. In other terms, the separation of ownership and control, rather than being ‘a problem’ and in spite of entailing some costs, is the very virtue of the corporate form. The chapter concludes with a review of implications for devising effective institutions, especially in transition economies.
Ehud Kamar
- Published in print:
- 2006
- Published Online:
- January 2009
- ISBN:
- 9780199202911
- eISBN:
- 9780191707964
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199202911.003.0003
- Subject:
- Law, Company and Commercial Law
This chapter documents and analyzes a powerful form of regulatory competition — competition for investments — that has transformed national corporate laws in the European Union (EU) in recent years. ...
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This chapter documents and analyzes a powerful form of regulatory competition — competition for investments — that has transformed national corporate laws in the European Union (EU) in recent years. Unlike competition for incorporations, competition for investments shapes corporate law when firms cannot easily incorporate outside the jurisdiction in which they operate. These dynamics also characterized state lawmaking in the United States in the early 19th century, and may well characterize lawmaking outside the EU today. The high political payoffs that await successful participants in the competition for investments enable them to overcome opposition that could stifle competition for incorporations. Together with the fact that no single jurisdiction can monopolize the market for investments, these payoffs drive multiple jurisdictions, including large ones, to compete. Allowing firms to incorporate abroad, as recent European Court of Justice rulings require, may or may not breed competition for incorporations. Judging from the reforms that the competition for investments has produced so far, it will be positive.Less
This chapter documents and analyzes a powerful form of regulatory competition — competition for investments — that has transformed national corporate laws in the European Union (EU) in recent years. Unlike competition for incorporations, competition for investments shapes corporate law when firms cannot easily incorporate outside the jurisdiction in which they operate. These dynamics also characterized state lawmaking in the United States in the early 19th century, and may well characterize lawmaking outside the EU today. The high political payoffs that await successful participants in the competition for investments enable them to overcome opposition that could stifle competition for incorporations. Together with the fact that no single jurisdiction can monopolize the market for investments, these payoffs drive multiple jurisdictions, including large ones, to compete. Allowing firms to incorporate abroad, as recent European Court of Justice rulings require, may or may not breed competition for incorporations. Judging from the reforms that the competition for investments has produced so far, it will be positive.
Zenichi Shishido
- Published in print:
- 2007
- Published Online:
- September 2007
- ISBN:
- 9780199284511
- eISBN:
- 9780191713705
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199284511.003.0011
- Subject:
- Economics and Finance, South and East Asia
This chapter examines the impact on the scope of behaviour of top management of legal reforms in Japan since 1997. Demand-pull measures were promoted by business associations to facilitate the ...
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This chapter examines the impact on the scope of behaviour of top management of legal reforms in Japan since 1997. Demand-pull measures were promoted by business associations to facilitate the introduction of new market-oriented business practices, including removing prohibitions of share buybacks, introducing stock options, and share swaps and spin-offs to support corporate reorganization through M&A. Policy-push reforms were also initiated by the government in order to push change in existing corporate governance practices, such as changes to accounting rules. The epoch making 2002 amendment to the Company Law introduced an American-style board of directors, termed ‘board with committees’ as a second option alongside the traditional Japanese-style board with statutory auditors. By facilitating these new practices, Japanese corporate law has undergone a formal convergence with the US model. However, the diversity of actual choices among firms is argued to reflect continued functional divergence due to differences in the incentive patterns among corporate stakeholders. Thus, legal reform holds an ambiguous potential.Less
This chapter examines the impact on the scope of behaviour of top management of legal reforms in Japan since 1997. Demand-pull measures were promoted by business associations to facilitate the introduction of new market-oriented business practices, including removing prohibitions of share buybacks, introducing stock options, and share swaps and spin-offs to support corporate reorganization through M&A. Policy-push reforms were also initiated by the government in order to push change in existing corporate governance practices, such as changes to accounting rules. The epoch making 2002 amendment to the Company Law introduced an American-style board of directors, termed ‘board with committees’ as a second option alongside the traditional Japanese-style board with statutory auditors. By facilitating these new practices, Japanese corporate law has undergone a formal convergence with the US model. However, the diversity of actual choices among firms is argued to reflect continued functional divergence due to differences in the incentive patterns among corporate stakeholders. Thus, legal reform holds an ambiguous potential.
Guido Ferrarini and Eddy Wymeersch (eds)
- Published in print:
- 2006
- Published Online:
- January 2009
- ISBN:
- 9780199202911
- eISBN:
- 9780191707964
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199202911.001.0001
- Subject:
- Law, Company and Commercial Law
EU policy in the area of corporate governance and capital markets is being reoriented. Harmonization is less frequently seen as a concept in company law, regulatory competition is on the rise, and ...
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EU policy in the area of corporate governance and capital markets is being reoriented. Harmonization is less frequently seen as a concept in company law, regulatory competition is on the rise, and experiments in soft law are being carried out. Several member States have recently reformed their corporate laws, either as a reaction to financial scandals or in an effort to enhance investment. Convergence has increased as a result, particularly towards Anglo-American standards. Yet, differences still exist, profoundly rooted in national systems of corporate governance. By contrast, capital market law would seem to be an exception having undergone intense harmonization in the last few years through the Lamfalussy regulatory architecture. Nonetheless, a European system of securities regulation is not yet in place. Regulation is predominantly domestic, each country having its own securities supervisor, while private laws affecting capital markets are still divergent. This volume examines the on-going debate on corporate and financial law reform from an interdisciplinary perspective. Part 1 explores the political determinants of corporate governance and evaluates the likelihood of convergence and the role of regulatory competition. Part 2 considers the Markets in Financial Instruments Directive (MiFID), its central role in the harmonization of EU securities trading, and the intense debate that preceded its adoption. Part 3 provides deeper legal analysis of the MiFID and other core harmonization measures, including the Prospectus and Transparency Directives. Part 4 takes this analysis one step further by offering future perspectives on the post-FSAP era.Less
EU policy in the area of corporate governance and capital markets is being reoriented. Harmonization is less frequently seen as a concept in company law, regulatory competition is on the rise, and experiments in soft law are being carried out. Several member States have recently reformed their corporate laws, either as a reaction to financial scandals or in an effort to enhance investment. Convergence has increased as a result, particularly towards Anglo-American standards. Yet, differences still exist, profoundly rooted in national systems of corporate governance. By contrast, capital market law would seem to be an exception having undergone intense harmonization in the last few years through the Lamfalussy regulatory architecture. Nonetheless, a European system of securities regulation is not yet in place. Regulation is predominantly domestic, each country having its own securities supervisor, while private laws affecting capital markets are still divergent. This volume examines the on-going debate on corporate and financial law reform from an interdisciplinary perspective. Part 1 explores the political determinants of corporate governance and evaluates the likelihood of convergence and the role of regulatory competition. Part 2 considers the Markets in Financial Instruments Directive (MiFID), its central role in the harmonization of EU securities trading, and the intense debate that preceded its adoption. Part 3 provides deeper legal analysis of the MiFID and other core harmonization measures, including the Prospectus and Transparency Directives. Part 4 takes this analysis one step further by offering future perspectives on the post-FSAP era.
Kenneth Lipartito and David B. Sicilia (eds)
- Published in print:
- 2004
- Published Online:
- September 2007
- ISBN:
- 9780199251902
- eISBN:
- 9780191719059
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199251902.001.0001
- Subject:
- Business and Management, Business History
Challenging assumptions about the history and performance of the business corporation in the United States, this book seeks to explain more fully this crucial institution of capitalism. The authors ...
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Challenging assumptions about the history and performance of the business corporation in the United States, this book seeks to explain more fully this crucial institution of capitalism. The authors draw on theoretical insights from economics, law, political science, and cultural studies to show the multiple ways in which corporations have shaped American society, culture, and politics over the past two centuries. They reject assertions that the corporation is dead and show that it in fact has survived, and even thrived by adapting to changes in its politics, social, and cultural environment. They call into question narrow economic theories of the firm, and show instead that the corporation must be treated as a more fully social institution, pointing the way to a new periodization of corporate history and a new set of questions for scholars to explore. Key issues engaged include the legal and political position of the corporations, ways in which the corporation has shaped and been shaped by American culture, controversies over corporate regulation and corporate power, and the efforts of minority and disadvantaged groups to gain access to corporate resources and opportunities.Less
Challenging assumptions about the history and performance of the business corporation in the United States, this book seeks to explain more fully this crucial institution of capitalism. The authors draw on theoretical insights from economics, law, political science, and cultural studies to show the multiple ways in which corporations have shaped American society, culture, and politics over the past two centuries. They reject assertions that the corporation is dead and show that it in fact has survived, and even thrived by adapting to changes in its politics, social, and cultural environment. They call into question narrow economic theories of the firm, and show instead that the corporation must be treated as a more fully social institution, pointing the way to a new periodization of corporate history and a new set of questions for scholars to explore. Key issues engaged include the legal and political position of the corporations, ways in which the corporation has shaped and been shaped by American culture, controversies over corporate regulation and corporate power, and the efforts of minority and disadvantaged groups to gain access to corporate resources and opportunities.
Mary O'Sullivan
- Published in print:
- 2001
- Published Online:
- November 2003
- ISBN:
- 9780199244867
- eISBN:
- 9780191596735
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199244863.003.0004
- Subject:
- Economics and Finance, Microeconomics
In historical perspective, market control over the allocation of US corporate resources stands out as a recent phenomenon, since for most of the twentieth century, salaried managers have exercised ...
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In historical perspective, market control over the allocation of US corporate resources stands out as a recent phenomenon, since for most of the twentieth century, salaried managers have exercised control over resource allocation by US corporate enterprises. In this chapter, the lengthy and complex historical process through which the institutional foundations of managerial control emerged in the US corporate economy is discussed. The focusing, in particular, is on the role of the integration of managers as members of business organizations, the diffusion of share ownership, the changing interaction between the stock market and the public corporation, and the transformation of corporate law in facilitating the separation of beneficial ownership of corporate stock from strategic control over the allocation of corporate resources. The main sections of the chapter are: 3.2, The historical foundations of managerial control; 3.3, Managerial control and the Great Depression; 3.4, and New deals, old deals––which discusses changes in corporate governance, workers’ rights and unionism, and defence of the corporate manager's right to manage.Less
In historical perspective, market control over the allocation of US corporate resources stands out as a recent phenomenon, since for most of the twentieth century, salaried managers have exercised control over resource allocation by US corporate enterprises. In this chapter, the lengthy and complex historical process through which the institutional foundations of managerial control emerged in the US corporate economy is discussed. The focusing, in particular, is on the role of the integration of managers as members of business organizations, the diffusion of share ownership, the changing interaction between the stock market and the public corporation, and the transformation of corporate law in facilitating the separation of beneficial ownership of corporate stock from strategic control over the allocation of corporate resources. The main sections of the chapter are: 3.2, The historical foundations of managerial control; 3.3, Managerial control and the Great Depression; 3.4, and New deals, old deals––which discusses changes in corporate governance, workers’ rights and unionism, and defence of the corporate manager's right to manage.
Mark J. Joe
- Published in print:
- 2006
- Published Online:
- October 2011
- ISBN:
- 9780199205301
- eISBN:
- 9780191695612
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199205301.003.0025
- Subject:
- Business and Management, Corporate Governance and Accountability, Business History
This chapter explores the limits of the theory of corporate law. It holds that the quality-of-corporate-law theory needs to be refined or replaced. Ownership cannot readily separate from control if ...
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This chapter explores the limits of the theory of corporate law. It holds that the quality-of-corporate-law theory needs to be refined or replaced. Ownership cannot readily separate from control if managerial agency costs are very high for shareholders, and law does not directly affect all managerial agency costs. Elaborate legal doctrine prohibits judicial inquiry into managers' basic business decisions. Other primarily non-legal institutions control the size of managerial agency costs, and these carry in effectiveness from firm-to-firm and nation-to-nation. Thus, corporate law can only be one-half of the central story in the understanding of why ownership does or does not separate.Less
This chapter explores the limits of the theory of corporate law. It holds that the quality-of-corporate-law theory needs to be refined or replaced. Ownership cannot readily separate from control if managerial agency costs are very high for shareholders, and law does not directly affect all managerial agency costs. Elaborate legal doctrine prohibits judicial inquiry into managers' basic business decisions. Other primarily non-legal institutions control the size of managerial agency costs, and these carry in effectiveness from firm-to-firm and nation-to-nation. Thus, corporate law can only be one-half of the central story in the understanding of why ownership does or does not separate.
Mark J. Joe
- Published in print:
- 2006
- Published Online:
- October 2011
- ISBN:
- 9780199205301
- eISBN:
- 9780191695612
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199205301.003.0024
- Subject:
- Business and Management, Corporate Governance and Accountability, Business History
This chapter outlines the quality of corporate law and its importance. The important precondition to developing modern securities markets, and the industrial, technological wealth that goes with deep ...
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This chapter outlines the quality of corporate law and its importance. The important precondition to developing modern securities markets, and the industrial, technological wealth that goes with deep and vibrant securities markets is a foundation of highly developed corporate and securities law that protect minority stockholders from the rampages of dominant majority stockholders. If corporate law is good enough in technologically-advanced nations, ownership will diffuse away from concentrated ownership into dispersed stock markets.Less
This chapter outlines the quality of corporate law and its importance. The important precondition to developing modern securities markets, and the industrial, technological wealth that goes with deep and vibrant securities markets is a foundation of highly developed corporate and securities law that protect minority stockholders from the rampages of dominant majority stockholders. If corporate law is good enough in technologically-advanced nations, ownership will diffuse away from concentrated ownership into dispersed stock markets.
Lazega Emmanuel
- Published in print:
- 2001
- Published Online:
- October 2011
- ISBN:
- 9780199242726
- eISBN:
- 9780191697166
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199242726.003.0003
- Subject:
- Business and Management, Organization Studies, HRM / IR
This chapter presents the firm used as a case study, a north-eastern US corporate law partnership, in which fieldwork was conducted to examine the generic social mechanisms that help coordinate ...
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This chapter presents the firm used as a case study, a north-eastern US corporate law partnership, in which fieldwork was conducted to examine the generic social mechanisms that help coordinate activities of interdependent entrepreneurs. In this firm, formal organizational structure such as the partnership agreement (according to which partners are personally liable for the actions of others) and the committee system are not sufficient by themselves to account for collective action. Therefore the firm, a successful one in spite of economic difficulties in the north-east at the time of research, offers a good setting for this examination.Less
This chapter presents the firm used as a case study, a north-eastern US corporate law partnership, in which fieldwork was conducted to examine the generic social mechanisms that help coordinate activities of interdependent entrepreneurs. In this firm, formal organizational structure such as the partnership agreement (according to which partners are personally liable for the actions of others) and the committee system are not sufficient by themselves to account for collective action. Therefore the firm, a successful one in spite of economic difficulties in the north-east at the time of research, offers a good setting for this examination.
- Published in print:
- 2006
- Published Online:
- March 2013
- ISBN:
- 9780226470405
- eISBN:
- 9780226470429
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226470429.003.0001
- Subject:
- Law, Company and Commercial Law
This chapter focuses on the evolution of corporate criminal law in America. The historical phases of the substantive corporate criminal law discussed in the chapter share the tension accompanying the ...
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This chapter focuses on the evolution of corporate criminal law in America. The historical phases of the substantive corporate criminal law discussed in the chapter share the tension accompanying the social control of business enterprises, whether this tension appears as concerns with the metaphysics of personhood (phase one), the rise and obscure fall of vicarious liability (phase two), the routine risk-shifting between agents and principals (phase three), the successful and failed attempts at model state and federal codes (phase four), the reactions to a “new” regulatory state (phase five), the gaming of regulators by the “good citizen” corporation (phase six), or the reactive prosecution and regulation following a period of scandals marked by widespread accounting fraud and governance and compliance failures (phase seven). These seven phases overlap significantly and are far from discrete. They do, however, provide one account of some of the more important trends and milestones of the corporate criminal law. Notably, all phases reflect the powerful influence of the public and segments of the business community in lobbying for or inhibiting legislative reform. These influences remain once legislation is passed, and they often dictate the extent to which laws are largely ignored or rigorously enforced.Less
This chapter focuses on the evolution of corporate criminal law in America. The historical phases of the substantive corporate criminal law discussed in the chapter share the tension accompanying the social control of business enterprises, whether this tension appears as concerns with the metaphysics of personhood (phase one), the rise and obscure fall of vicarious liability (phase two), the routine risk-shifting between agents and principals (phase three), the successful and failed attempts at model state and federal codes (phase four), the reactions to a “new” regulatory state (phase five), the gaming of regulators by the “good citizen” corporation (phase six), or the reactive prosecution and regulation following a period of scandals marked by widespread accounting fraud and governance and compliance failures (phase seven). These seven phases overlap significantly and are far from discrete. They do, however, provide one account of some of the more important trends and milestones of the corporate criminal law. Notably, all phases reflect the powerful influence of the public and segments of the business community in lobbying for or inhibiting legislative reform. These influences remain once legislation is passed, and they often dictate the extent to which laws are largely ignored or rigorously enforced.
Pierre Salmon
- Published in print:
- 2006
- Published Online:
- January 2009
- ISBN:
- 9780199202911
- eISBN:
- 9780191707964
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199202911.003.0002
- Subject:
- Law, Company and Commercial Law
The question whether regulatory competition in the area of company law could take place in the European Union (EU) in a way similar to that in the United States (the Delaware phenomenon) ignores the ...
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The question whether regulatory competition in the area of company law could take place in the European Union (EU) in a way similar to that in the United States (the Delaware phenomenon) ignores the importance of voters and tends to view competition among governments as if it was exclusively based on the mobility of firms across jurisdictions. But intergovernmental competition can also take the form of yardstick, or relative performance, competition. This chapter begins by spelling out some characteristics of the mechanism. The second part stresses some aspects of the path followed by European integration. The third and fourth parts are devoted to corporate governance and law making in the EU context. Yardstick competition between the EU and other parts of the world is likely to start a dynamic process that could lead to the centralization of a large part of company lawmaking at the EU level and the emergence of a distinctive legal environment for firms doing business in Europe.Less
The question whether regulatory competition in the area of company law could take place in the European Union (EU) in a way similar to that in the United States (the Delaware phenomenon) ignores the importance of voters and tends to view competition among governments as if it was exclusively based on the mobility of firms across jurisdictions. But intergovernmental competition can also take the form of yardstick, or relative performance, competition. This chapter begins by spelling out some characteristics of the mechanism. The second part stresses some aspects of the path followed by European integration. The third and fourth parts are devoted to corporate governance and law making in the EU context. Yardstick competition between the EU and other parts of the world is likely to start a dynamic process that could lead to the centralization of a large part of company lawmaking at the EU level and the emergence of a distinctive legal environment for firms doing business in Europe.
Kenneth Lipartito and David B. Sicilia
- Published in print:
- 2004
- Published Online:
- September 2007
- ISBN:
- 9780199251902
- eISBN:
- 9780191719059
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199251902.003.0013
- Subject:
- Business and Management, Business History
This chapter summarizes the major findings of the book's chapters and their revisionist implications. Rather than seeing the corporation as the dominant economic form simply because it was more ...
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This chapter summarizes the major findings of the book's chapters and their revisionist implications. Rather than seeing the corporation as the dominant economic form simply because it was more efficient, rational, and professional than competing forms — a view argued by neoclassical economists, Alfred Chandler, and other scholars — this book's authors collectively challenge this master narrative in three key ways. First, they offer an alternative periodization that highlights distinctive corporate forms and purposes in the different eras of the 19th and 20th centuries rather than a Whiggish narrative of the rise and triumph of an ideal type. Second, they argue that the boundaries between corporations and their social, political, legal, and ideological contexts were much more permeable than much traditional scholarship suggestions. Third, they emphasize the contested, rhetorical, and exclusionary nature of corporations as they have served as sites of identity construction.Less
This chapter summarizes the major findings of the book's chapters and their revisionist implications. Rather than seeing the corporation as the dominant economic form simply because it was more efficient, rational, and professional than competing forms — a view argued by neoclassical economists, Alfred Chandler, and other scholars — this book's authors collectively challenge this master narrative in three key ways. First, they offer an alternative periodization that highlights distinctive corporate forms and purposes in the different eras of the 19th and 20th centuries rather than a Whiggish narrative of the rise and triumph of an ideal type. Second, they argue that the boundaries between corporations and their social, political, legal, and ideological contexts were much more permeable than much traditional scholarship suggestions. Third, they emphasize the contested, rhetorical, and exclusionary nature of corporations as they have served as sites of identity construction.
Grahame Thompson
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199694761
- eISBN:
- 9780191741289
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199694761.003.0013
- Subject:
- Business and Management, Organization Studies
The chapter analyzes the mergent ways companies are becoming overtly political actors and pursues the consequences of this for the future of the corporation. The discussion begins by analyzing the ...
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The chapter analyzes the mergent ways companies are becoming overtly political actors and pursues the consequences of this for the future of the corporation. The discussion begins by analyzing the relationships between owners and shareholders in the context of the legal constitution of corporations. The chapter moves on to take up ‘the debate’ about the divorce of ownership from control in the light of this thorough examination of the legal status of the corporation, in so doing revisiting the terms of that debate in the 1930s and 1940s that arose in the light of the Berle and Means’ book, The Modern Corporation and Private Property(1932). Subsequent to this it moves on to think about the possible future of the corporation and the potential for the reform of corporate governance in this light of current circumstances and trends in a post-crisis world.Less
The chapter analyzes the mergent ways companies are becoming overtly political actors and pursues the consequences of this for the future of the corporation. The discussion begins by analyzing the relationships between owners and shareholders in the context of the legal constitution of corporations. The chapter moves on to take up ‘the debate’ about the divorce of ownership from control in the light of this thorough examination of the legal status of the corporation, in so doing revisiting the terms of that debate in the 1930s and 1940s that arose in the light of the Berle and Means’ book, The Modern Corporation and Private Property(1932). Subsequent to this it moves on to think about the possible future of the corporation and the potential for the reform of corporate governance in this light of current circumstances and trends in a post-crisis world.
Angus Corbett and Stephen Bottomley
- Published in print:
- 2004
- Published Online:
- March 2012
- ISBN:
- 9780199264070
- eISBN:
- 9780191698903
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199264070.003.0004
- Subject:
- Law, Legal Profession and Ethics
This chapter defines regulation as an activity that is aimed at ‘influencing the flow of events’. It analyses changes in the understanding of corporate law that are wrought by the high level of ...
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This chapter defines regulation as an activity that is aimed at ‘influencing the flow of events’. It analyses changes in the understanding of corporate law that are wrought by the high level of interest in regulation. It argues that regulation is transforming the understanding of the content of corporate law. Furthermore, it holds that the category of law known as ‘corporate law’ is being transformed into a broader category of rules called corporate governance. It claims that it is useful to think of corporate governance as a body or category of law as well as a body of governance practices, processes, and structures.Less
This chapter defines regulation as an activity that is aimed at ‘influencing the flow of events’. It analyses changes in the understanding of corporate law that are wrought by the high level of interest in regulation. It argues that regulation is transforming the understanding of the content of corporate law. Furthermore, it holds that the category of law known as ‘corporate law’ is being transformed into a broader category of rules called corporate governance. It claims that it is useful to think of corporate governance as a body or category of law as well as a body of governance practices, processes, and structures.
Mark J. Joe
- Published in print:
- 2006
- Published Online:
- October 2011
- ISBN:
- 9780199205301
- eISBN:
- 9780191695612
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199205301.003.0023
- Subject:
- Business and Management, Corporate Governance and Accountability, Business History
This chapter presents data showing the relationships between product market competition and securities markets among the world's richest nations. It also shows the relative strength of the political ...
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This chapter presents data showing the relationships between product market competition and securities markets among the world's richest nations. It also shows the relative strength of the political indicators in predicting ownership concentration. Corporate law quality, product market strength, and politics all predict the degree of ownership concentration. When politics is conducive to ownership separation, the supporting institutions may prosper.Less
This chapter presents data showing the relationships between product market competition and securities markets among the world's richest nations. It also shows the relative strength of the political indicators in predicting ownership concentration. Corporate law quality, product market strength, and politics all predict the degree of ownership concentration. When politics is conducive to ownership separation, the supporting institutions may prosper.
Kevin Butterfield
- Published in print:
- 2015
- Published Online:
- May 2016
- ISBN:
- 9780226297088
- eISBN:
- 9780226297118
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226297118.003.0006
- Subject:
- History, American History: 19th Century
Tensions between individual members’ rights and the will of the majority were common and were fraught with tension, for the challenge was to create effective associations that accorded with ...
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Tensions between individual members’ rights and the will of the majority were common and were fraught with tension, for the challenge was to create effective associations that accorded with post-Revolutionary ideas of fairness, accountability, and rule by consent. This chapter will look at organizations that in a very real sense were almost entirely focused on money, exploring some of the ways that controversies over the meanings of membership in mutual fire insurance cooperatives and stock-issuing business corporations echoed challenges faced elsewhere in America’s now-burgeoning civil society. This chapter will look at how the rights and expectations of corporate shareholders evolved between 1800 and 1840.Less
Tensions between individual members’ rights and the will of the majority were common and were fraught with tension, for the challenge was to create effective associations that accorded with post-Revolutionary ideas of fairness, accountability, and rule by consent. This chapter will look at organizations that in a very real sense were almost entirely focused on money, exploring some of the ways that controversies over the meanings of membership in mutual fire insurance cooperatives and stock-issuing business corporations echoed challenges faced elsewhere in America’s now-burgeoning civil society. This chapter will look at how the rights and expectations of corporate shareholders evolved between 1800 and 1840.
