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Professor Cheffins' lecture offers a path-breaking examination of potential trajectories for legal scholarship. Considerable attention is devoted to academic writing on law, but little has been said about the process by which the relevant literature evolves. This lecture focuses directly on the evolution of legal scholarship. It identifies five potential trajectories, revolving around concepts such as 'progress', 'paradigms', the marketplace for ideas, intellectual cycles, and fads and fashions. Professor Cheffins offers a summary of each trajectory and then tests the propositions he has advanced by means of a case study dealing with corporate law. He argues that scholarly trends in law develop in a manner that is at least partially consistent with each of the trajectories he identifies, but acknowledges that none captures fully the dynamics at work.
In recent years, the publicly held corporation has assumed a central position in both the economic and political spheres of American life. Economically, the public corporation has long acted as the key institution within American capitalism. Politically, the public corporation now can use its economic might to sway electoral outcomes as never before. Indeed, individuals who control public firms wield more economic might and political power today than ever before. These truths profoundly shape American society. The power, control, and role of the public corporation under law and regulation, therefore, hold more importance than at any other time period.Even though corporate law and regulation define all aspects of this central economic and political institution within the American system, the development of corporate law is impeded by a deficient pedagogy -- and thus, to a certain degree, scholarship -- that scarcely mentions the power and influence corporations hold. Critical voices, in particular, are excluded from virtually all corporate law textbooks. Many corporate law texts taught in law school classrooms treat the social role of the public corporation as a black box of corporate law pedagogy and, by extension, mainstream legal scholarship. Indeed, a relentless stream of legal scholarship challenging the law and regulation of the public firm from the perspective of its broader social and economic implications receives little to no mention in the key textbooks adopted and taught from in law schools today. This Article challenges the dominant corporate law master narrative perpetuated in all of the major business law textbooks. This master narrative prevents students of the law and legal scholars from fully understanding and analyzing the changing nature and evolution of law and power in the United States.
This anthology of current corporate law material reflects the last decade's changes in business organization and legal scholarship. Covers such topics as capital markets, agency theory, state competition for corporate charters, boards of directors, shareholder voting rights, takeovers, and securities regulation.
The past two decades has witnessed unprecedented changes in the corporate governance landscape in Europe, the US and Asia. Across many countries, activist investors have pursued engagements with management of target companies. More recently, the role of the hostile activist shareholder has been taken up by a set of hedge funds. Hedge fund activism is characterized by mergers and corporate restructuring, replacement of management and board members, proxy voting, and lobbying of management. These investors target and research companies, take large positions in their stock, criticize their business plans and governance practices, and confront their managers, demanding action enhancing shareholder value. This book analyses the impact of activists on the companies that they invest, the effects on shareholders and on activists funds themselves. Chapters examine such topic as investors' strategic approaches, the financial returns they produce, and the regulatory frameworks within which they operate. The chapters also provide historical context, both of activist investment and institutional shareholder passivity. The volume facilitates a comparison between the US and the EU, juxtaposing not only regulatory patterns but investment styles.
For decades, the public company has played a dominant role in the American economy. Since the middle of the 20th century, the nature of the public company has changed considerably. The transformation has been a fascinating one, marked by scandals, political controversy, wide swings in investor and public sentiment, mismanagement, entrepreneurial verve, noisy corporate "raiders" and various other larger-than-life personalities. Nevertheless, amidst a voluminous literature on corporations, a systematic historical analysis of the changes that have occurred is lacking. The Public Company Transformed correspondingly analyzes how the public company has been recast from the mid-20th century through to the present day, with particular emphasis on senior corporate executives and the constraints affecting the choices available to them. The chronological point of departure is the managerial capitalism era, which prevailed in large American corporations following World War II. The book explores managerial capitalism's rise, its 1950s and 1960s heyday, and its fall in the 1970s and 1980s. It describes the American public companies and executives that enjoyed prosperity during the 1990s, and the reversal of fortunes in the 2000s precipitated by corporate scandals and the financial crisis of 2008. The book also considers the regulation of public companies in detail, and discusses developments in shareholder activism, company boards, chief executives, and concerns about oligopoly. The volume concludes by offering conjectures on the future of the public corporation, and suggests that predictions of the demise of the public company have been exaggerated.
The globalization of capital markets since the 1980s has been accompanied by a vigorous debate over the convergence of corporate governance standards around the world towards the shareholder model. But even before the financial and economic crisis of 2008/2009, the dominance of the shareholder model was challenged with regard to persisting divergences and national differences in corporate law, labor law and industrial relations. This collection explores this debate at an important crossroads, echoing Karl Polanyi's famous observation in 1944 of the disembeddedness of the market from society. Drawing on pertinent insights from scholars, practitioners and regulators in corporate and labor law, securities regulation as well as economic sociology and management theory, the contributions shed important light on the empirical effects on the economy of the shift to shareholder primacy, in light of a comprehensive reconsideration of the global context, policy goals and regulatory forms which characterize market governance today.
The third in a series of three volumes on Contemporary Legal Theory, this volume deals with four topics: 1) the role of legal theory in the legal curriculum; 2) the teaching of legal theory; 3) the relationship of legal theory to legal scholarship; and 4) the relationship of legal theory to comparative law. The focus of the first two topics is on the common law world, where the debates over the aims and proper place of legal theory in the study of law have traversed a good deal of ground since John Austin's 1828 lecture, 'The Uses and the Study of Jurisprudence.' These first two parts offer a selection of the most important papers, including surveys, as well as pedagogical viewpoints and particular course descriptions from analytical, critical, feminist, law-and-literature and global perspectives. The last three decades have seen just as many changes for legal scholarship and comparative law. These changes (such as the rise of empirical legal scholarship) have often attracted the attention of legal theorists. Within comparative law, the last thirty years have witnessed intense methodological reflection within the discipline; the results of these reflections are themselves properly recognised as legal theoretical contributions. The volume collects the key papers, including those by Neil MacCormick, Mark Van Hoecke, Andrew Halpin, William Ewald and Geoffrey Samuel.
Business firms are ubiquitous in modern society, but an appreciation of how they are formed and for what purposes requires an understanding of their legal foundations. This book provides a scholarly and yet accessible introduction to the legal framework of modern business enterprises. It explains how the legal ideas allow for the construction and recognition of business firms as persons having rights and responsibilities. It also shows how law sets the boundariesof firms. Specific applications include contributions to debates about executive compensation and political free-speech rights of corporations. Anyone who wishes to have a deeper understanding of thenature of business firms and their role in modern society will benefit from reading this book.
Although American scholars sometimes consider European legal scholarship as old-fashioned and inward-looking and Europeans often perceive American legal scholarship as amateur social science, both traditions share a joint challenge. If legal scholarship becomes too much separated from practice, legal scholars will ultimately make themselves superfluous. If legal scholars, on the other hand, cannot explain to other disciplines what is academic about their research, which methodologies are typical, and what separates proper research from mediocre or poor research, they will probably end up in a similar situation. Therefore we need a debate on what unites legal academics on both sides of the Atlantic. Should legal scholarship aspire to the status of a science and gradually adopt more and more of the methods, (quality) standards, and practices of other (social) sciences? What sort of methods do we need to study law in its social context and how should legal scholarship deal with the challenges posed by globalization?