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Corporate Governance in the Shadow of the State

By: Marc Moore
Media of Corporate Governance in the Shadow of the State
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Published: 01-03-2013
Format: PDF eBook (?)
Edition: 1st
Extent: 336
ISBN: 9781782250869
Imprint: Hart Publishing
Series: Contemporary Studies in Corporate Law
RRP: £67.50
Online price : £54.00
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Loren Epson

About Corporate Governance in the Shadow of the State

Over recent decades corporate governance has developed an increasingly high profile in legal scholarship and practice, especially in the US and UK. But despite widespread interest, there remains considerable uncertainty about how exactly corporate governance should be defined and understood. In this important work, Marc Moore critically analyses the core dimensions of corporate governance law in these two countries, seeking to determine the fundamental nature of corporate governance as a subject of legal enquiry. In particular, Moore examines whether Anglo-American corporate governance is most appropriately understood as an aspect of 'private' (facilitative) law, or as a part of 'public' (regulatory) law. In contrast to the dominant contractarian understanding of the subject, which sees corporate governance as an institutional response to investors' market-driven private preferences, this book defines corporate governance as the manifestly public problem of securing the legitimacy – and, in turn, sustainability – of discretionary administrative power within large economic organisations. It emphasises the central importance of formal accountability norms in legitimating corporate managers' continuing possession and exercise of such power, and demonstrates the structural necessity of mandatory public regulation in this regard. In doing so it highlights the significant and conceptually irreducible role of the regulatory state in determining the key contours of the Anglo-American corporate governance framework. The normative effect is to extend the state's acceptable policy-making role in corporate governance, as an essential supplement to private ordering dynamics.

Shortlisted for The Peter Birks Prize for Outstanding Legal Scholarship 2013.

Table Of Contents

1: Introduction
I. What is this Book About?
II. The Plan for the Book
III. Provisos to the Following Discussion
2: Defining Corporate Governance as a Subject of Legal Enquiry
I. The Problem of Corporate-Managerial Power
II. The Structural Imperative of Legitimating Corporate-Managerial Power
III. Why Shareholder Exclusivity?
IV. Summary
3: The Contractarian Paradigm of Corporate Governance Law
I. The Purported 'Privity' of Anglo-American Corporate Law
II. (A Brief) Historical and Intellectual Background to Corporate Contractarianism
III. How Do Contractarians Rationalise the Most Prominent Features of Anglo-American Corporate Governance?
IV. Legitimating Reciprocal Power Imbalance Within the Contractarian Paradigm
V. Summary
4: The Contractual Dimensions of US Corporate Governance Law
I. 'Opt-Out', 'Opt-In', and Reversible-Default Rules
II. Competitive Federalism
III. Judicial Deference to Private Ordering: The Business Judgment Rule
IV. Anti-Takeover Measures
V. Federal Deference to Private Ordering: The Rule 14a-8 Proposal
VI. The US Corporate Board as a Pre-Regulatory Institution
VII. Summary
5: The Contractual Dimensions of UK Corporate Governance Law
I. The Contractual Principle
II. Judicial Deference to Private Ordering
III. The Endogeneity of the British Corporate Board
IV. Market-Invoking Regulation
V. Summary
6: The (Expanding) Regulatory Dimensions of Anglo-American Corporate Governance Law
I. The 'De-Privatisation' of Anglo-American Corporate Governance Law?
II. The Mandatory Nature of Corporate Disclosure Regulation in the United States and United Kingdom
III. The Regulatory Division of Corporate Decision-Making Power in the UK
IV. The Counter-Contractual Nature of the Equitable Fiduciary Principle under Anglo-American Law
V. Summary
7: Rationalising Regulatory State Paternalism within an Expanded Contractarian Paradigm
I. Are Mandatory Rules 'Mandatory' at all?
II. The Acceptable Ambit of State Interventionism in Private Ordering: Negative Externalities and Public Goods
III. The 'Market Mimicking' Rationalisation of Regulatory State Interventionism
IV. The Limitations of the 'Market Mimicking' Rationalisation
V. Expanding the Frontiers of the Contractarian Paradigm
VI. Summary
8: Conclusions

Reviews

“…this wonderfully thoughtful text is a very significant contribution to our work. In his impressive theoretical analysis, the author engages in many insightful lines of argument to which a review of this kind cannot do justice.” –  Irene Lynch Fannon, Irish Jurist, (1)

“It is ultimately Moore's hope to leave readers inspired to engage in future academic debate and further empirical investigation regarding these largely unexplored issues, which conceptually lie at the intersection between corporate law, finance and political economy. Moore convincingly argues that corporate governance law is “ultimately unsusceptible to being understood properly through any one single theoretical prism” and looks forward to the constructive academic evolution that will no doubt follow this important work.” –  Jenifer Varzaly, Cambridge Law Journal, Volume 73, Issue 2

“...a tremendously erudite and sophisticated attempt to move economic efficiency out of the centre of discussions of corporate governance, and it deserves to be read widely.” –  Bryce C Tingle, Canadian Business Law Journal

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