In his account of the corporation as a ‘community’, Tony Lawson advances a materialist theory of social reality to argue for the existence of emergent social structures based on collective practices ...and behaviours, distinguishing his position from John Searle’s theory of social reality as consisting of declarative speech acts. Lawson’s and Searle’s accounts are examined for what they imply about the relationship between social structures and legal concepts. It is argued that legal concepts are themselves a feature of social reality and that a consequence of the law’s recognition of the ‘reality’ of the corporation is to open up the activities of business firm to a distinct form of normative ordering.
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It has become widely assumed that the standard employment relationship (SER) is in irreversible decline in industrialized societies. However, non‐standard and precarious work relationships often ...complement the SER via labour market transitions, and are not displacing it as the focal point of labour market regulation. The co‐ordination and risk management functions of the SER continue to be relevant in market economies, and the SER is adjusting to new conditions. The SER has a complex and evolving relationship to gender and to social stratification. In the European context where the SER originated and achieved its clearest legal expression, institutional solutions to precariousness and inequality are being developed, the most innovative of which avoid simple deregulation in favour of integrated policy responses involving a range of complementary regulatory mechanisms.
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This paper considers Douglass C. North's ‘puzzle’ concerning China's household responsibility system (HRS) and offers a possible solution. China's HRS, which has evolved over the past four decades to ...become its dominant form of rural land ownership, has stimulated spectacular economic growth and poverty reduction; however, it is based on a type of ownership which is far removed from the property rights regime which North regarded as essential. Two features of the HRS merit attention. The first is ‘split ownership’: this refers to the allocation of different aspects of ownership, including rights of access, use, management, exclusion and alienation, to a range of individual and collective actors with interests in the land in question. The second is polycentric governance: rules governing land use are derived in part from community-level action and in part from state intervention. We argue that in explaining the functioning of the HRS we need to move beyond the narrow conception of legally enforced private property rights on which North relied. We should instead embrace understandings of ownership as an emergent, diverse and complex institution, of the kind emphasized by A.M. Honoré's legal theory of ownership and Elinor Ostrom's theories of the common-pool resource and polycentric governance.
IN 'Poole Borough Council v GN' 2019 UKSC 25, the Supreme Court ruled that a local authority did not owe a duty of care to children whose family it had placed in public housing near another family it ...knew to have a reputation for anti-social behaviour, and who went on to subject the claimants and their mother to extreme forms of harassment, resulting in harms which included both physical and psychological injury. The Supreme Court upheld the ruling of the Court of Appeal in the same case (2017 EWCA Civ 2185) but on different grounds. The Court of Appeal in 'GN' had considered that its own earlier decision in 'D v East Berkshire AHA' 2004 Q.B. 558, 2003 EWCA Civ 1151, establishing that a local authority could owe a common law duty of care to a child to whom it had assumed statutory responsibilities, had been implicitly overruled by later decisions giving a restrictive reading to the common law duties of public bodies, including the police case of 'Michael v Chief Constable of South Wales' 2015 A.C. 1732, 2015 UKSC 2. The Supreme Court in 'GN' has now decided that the Court of Appeal's reading of its own former judgment in 'D' was wrong. This is no surprise, not least because the framing of the statutory powers of local authorities in child cases is completely different from that applying to the police. The wider significance of 'GN' lies in Lord Reed's restatement of the principles underlying the tortious liability of governmental and statutory bodies.
Shareholder primacy, or the idea that corporate managers are agents of shareholders and should act exclusively in their financial interests, holds growing sway over the law and practice of corporate ...governance. The shareholder primacy model has its roots in economic theories which argue that it is efficient for shareholders to be constituted as the residual owners or claimants of the firm. The model is conceptually elegant and is effective in generating hypotheses for empirical testing, but it fails to describe certain core features of the legal structure of the business corporation-in particular, the autonomy granted to managers (via the board) to organize the business of the company free from immediate control by any one of the corporate constituencies or stakeholders (including shareholders) whose inputs are needed for the firm to thrive. The increasing alignment of managerial interests with those of shareholders, through corporate governance innovations such as share options and independent boards, created incentives for excessive risk-taking and thereby helped to precipitate the global financial crisis that began in 2007. Partly as a result of growing evidence linking shareholder influence before the crisis with a higher failure rate of financial sector companies during the crisis, attention is now turning to alternative models of the firm.
One such model, the author suggests, is that of the corporation as commons: a shared resource whose sustainability depends on the participation of multiple constituencies in its governance (not just shareholders, but employees, core suppliers and customers). The idea of the commons better describes the legal structure of the business enterprise than does the shareholder primacy model: the firm's various stakeholders have overlapping property claims in relation to its assets, including rights of access, withdrawal, management, exclusion and alienation. Furthermore, as in a commons, the right of alienation is not the most salient right in a corporation.
Applying to the corporation the property rights and institutional design associated with the commons would help sustain the corporate enterprise and deliver benefits for all of its stakeholders and for society as a whole.
ON 18 October 2017, the UK Supreme Court decided Armes v Nottinghamshire County Council 2017 UKSC 60. The Court ruled that a local authority could be vicariously liable for intentional torts ...committed by foster parents against a child whom the authority had placed in their care. The outcome was not entirely unexpected. Less than two decades ago it would have been inconceivable. After all, isn't it the case that the common law does not recognise a general principle of liability in tort for the acts of third parties? And that in so far as it does, it holds an employer vicariously liable for a tort committed by an employee in the course of their employment? This is a very long way from the facts of Armes.
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This paper provides an overview of the key factors impacting upon the gender pay gap in the UK, Europe and Australia. Forty years after the implementation of the first equal pay legislation, the pay ...gap remains a key aspect of the inequalities women face in the labour market. While the overall pay gap has tended to fall in many countries over the past forty years, it has not closed; in some countries it has been stubbornly resistant, or has even widened. In reviewing the collection of papers that make up this special issue we identify four broad themes with which to group the contributions and draw out the explanations for diverse trends: theoretical and conceptual debates; legal developments and their impacts; wage setting institutions and changing employer demands; and newly emerging pay inequalities between and within educational and ethnic groups. Across the four themes we underline how the trends in the gender pay gap capture the dynamism of inequalities, as the market power of different groups and stakeholders changes over times. Three key dimensions emerge from the papers to provide a framework for future research and policy discourse: the relationship between litigation and bargaining strategies; the interaction between wage-setting institutions and new organisational practices; and the increasing and range of diversity or equality strands competing for equal treatment. We conclude that progress towards closing the gender pay gap will not be easy, will require a collective effort of various actors, and will not be quick.
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Hedge fund activism is an expression of shareholder primacy, an idea that has come to dominate discussion of corporate governance theory and practice worldwide over the past two decades. This book ...provides a thorough examination of public and often confrontational hedge fund activism in Japan in the period between 2001 and the full onset of the global financial crisis in 2008. In Japan this shareholder-centric conception of the company espoused by activist hedge funds clashed with the alternative Japanese conception of the company as an enduring organisation or a 'community'. By analysing this clash, the book derives a fresh view of the practices underpinning corporate governance in Japan and offers suggestions regarding the validity of the shareholder primacy ideas currently at the heart of US and UK beliefs about the purpose of the firm.
Using longitudinal data on labour law in France, Germany, Japan, Sweden, the United Kingdom and the United States over the period 1970–2010, the authors estimate the impact of labour regulation on ...unemployment and the labour share of national income. Their dynamic panel data analysis distinguishes between the short‐run and long‐run effects of regulatory change. They find that worker‐protective labour laws in general have no consistent relationship to unemployment but are positively correlated with labour's share of national income. Laws specifically relating to working time and employee representation are found to have beneficial effects on both efficiency and distribution thus proxied.
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•The idea that law constitutes finance is convincing but needs further methodological refinement.•Existing models do not take sufficient account of disequilibrium and non-stationarity in legal and ...financial systems.•Leximetric coding techniques can be used to generate better data on legal change over time.•Time-series econometric methods provide an empirical basis for understanding long-run dynamics in law and finance.
This commentary on the LTF project highlights the importance of the idea that law ‘constructs’ finance and considers some of its methodological implications. The idea that law shapes finance implies that the legal system can be clearly differentiated in theoretical terms from the economy, and that the independent causal influence of the law on financial outcomes can be measured empirically. It will be argued that this can best be achieved by placing empirical research on law and finance in an evolutionary-theoretical perspective, which draws on related developments in game theory and systems theory, in the statistical study of law (‘leximetrics’), and in time-series econometrics.
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