The 2008/9 crisis in global commercial debt markets exposed glaring deficiencies in corporate and regulatory operational and strategic risk management systems. This collection provides an overview of how narrow conceptions of responsibility in corporate law, organizational practice and regulatory dynamics facilitated the crisis. The first section revisits the debates about the role of the corporation prompted by the publication of The Modern Corporation and Private Property (1932). The second section explores why the conception of enlightened shareholder interest gained and retained potency despite demonstrable failure. The third section explores how the interaction between the foundational assumptions of corporate law and the (questionable) efficacy of shareholder control framed regulatory responses to the growth of financial capitalism. The fourth section examines ways in which excess can be restrained by the interaction between hard law, softer governance arrangements such as principles and, crucially, norms.
Table of Contents
Contents: Introduction; Part I The Role of Private Law in Framing Business Responsibilities: The modern corporation and private property: a reappraisal, Robert Hessen; The corporate contract, Frank H. Easterbrook and Daniel R. Fischel; The structure of corporation law, Melvin Aron Eisenberg; Private law and state-making in the age of globalization, Daniela Caruso. Part II The Role of the Shareholder in Framing Business Responsibilities: The apologetics of 'managerialism', Edward S. Mason; Eclipse of the public corporation, Michael C. Jensen; Company law and the myth of shareholder ownership, Paddy Ireland; Toward common sense and common ground? Reflections on the shared interests of managers and labor in a more rational system of corporate governance, Leo E. Strine. Part III The Role of Regulation in Shaping Business Responsibilities: Self-regulation as policy process: the multiple and criss-crossing stages of private rule making, Tony Porter and Karsten Ronit; Regulation and social solidarity, Tony Prosser; The social construction of Sarbanes-Oxley, Donald C. Langevoort. Part IV Re-Negotiating the Corporate Contract: Toward effective stakeholder dialogue, Muel Kaptein and Rob van Tulder; Engage, embed and embellish: theory versus practice in the corporate social responsibility movement, John M. Conley and Cynthia A. Williams; Accountability and responsibility in corporate governance, Larry E. Ribstein; Modes of managing morality: a descriptive model of strategies for managing ethics, Gedeon J. Rossouw and Leon J. van Vuuren; How community institutions create economic advantage: Jewish diamond merchants in New York, Barak D. Richman; Name index.
Justin O'Brien is Research Professor in the Faculty of Law at the Queensland University of Technology, Australia