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Full-Text Articles in Business Law, Public Responsibility, and Ethics

Centros, California’S “Women On Boards” Statute And The Scope Of Regulatory Competition, Jill E. Fisch, Steven Davidoff Solomon May 2019

Centros, California’S “Women On Boards” Statute And The Scope Of Regulatory Competition, Jill E. Fisch, Steven Davidoff Solomon

Faculty Scholarship at Penn Law

We examine the Centros decision through the lens of SB 826 – the California statute mandating a minimum number of women on boards. SB 826, like the Centros decision, raises questions about the scope of the internal affairs doctrine and its role in encouraging regulatory competition. Despite the claim that US corporate law is characterized by regulatory competition, in the US, the internal affairs doctrine has led to less variation in corporate law than in Europe. We theorize that this is due to the shareholder primacy norm in US corporate law which results in the internal affairs doctrine focusing on matters ...


Coin-Operated Capitalism, Shaanan Cohney, David A. Hoffman, Jeremy Sklaroff, David A. Wishnick Jan 2019

Coin-Operated Capitalism, Shaanan Cohney, David A. Hoffman, Jeremy Sklaroff, David A. Wishnick

Faculty Scholarship at Penn Law

This Article presents the legal literature’s first detailed analysis of the inner workings of Initial Coin Offerings. We characterize the ICO as an example of financial innovation, placing it in kinship with venture capital contracting, asset securitization, and (obviously) the IPO. We also take the form seriously as an example of technological innovation, where promoters are beginning to effectuate their promises to investors through computer code, rather than traditional contract. To understand the dynamics of this shift, we first collect contracts, “white papers,” and other contract-like documents for the fifty top-grossing ICOs of 2017. We then analyze how such ...


Free Trade And Corporate Social Responsibility: Ethical Dilemmas In Global Economic Development, Sarah Papion Dec 2018

Free Trade And Corporate Social Responsibility: Ethical Dilemmas In Global Economic Development, Sarah Papion

Capstone Projects and Master's Theses

Through the lens of the free-trade-optimist, it is black and white: corporations bring jobs, and jobs equal a happy and healthy economy. A major oversight in this neoliberal Utopian ideology is that corporations are not in the business of building communities, nor do they have an interest in keeping their operations stationary enough to allow economic growth to occur over a span of years. Corporations abandon communities as quickly as they arrive to find their next cheap labor hub. Quite contradictory to the original purpose of free trade, economic growth in Free Trade Zones is not long term or secure ...


Money And Morality: Pathways Toward A Civic Stewardship Ethic (2012), Marcy Murninghan Mar 2018

Money And Morality: Pathways Toward A Civic Stewardship Ethic (2012), Marcy Murninghan

New England Journal of Public Policy

Based on a plenary presentation made at the Ninth Harvard University Forum on Islamic Finance, held at Harvard Law School in 2010, less than two years after the 2008 financial crisis, this article argues for the restoration of ethical values and civic commitments in capitalism and economic enterprise, drawing on traditional religious, theological, and philosophical principles regarding the civic moral obligations associated with building and managing wealth. The article is divided into three main parts. It begins with an overview of reform measures emanating from the financial debacle, including the Dodd-Frank Wall Street Reform and Consumer Protection Act, and an ...


Corporate Civic Responsibility And The Ownership Agenda: Investing In The Public Good (1994), Marcy Murninghan Mar 2018

Corporate Civic Responsibility And The Ownership Agenda: Investing In The Public Good (1994), Marcy Murninghan

New England Journal of Public Policy

This article seeks to provoke broader public discussion about ways in which human and ecologic dignity, prosperity, and the civic ideal can be advanced through a revitalized and principled ownership agenda that features greater levels of corporate accountability and civic virtue. It draws from portions of what then was called an “Occasional Paper,” part of a series emanating from the early days of the University of Massachusetts Boston’s McCormack Graduate School of Policy and Global Studies. Written in 1994, it introduces a new paradigm for corporate governance called the “corporate covenant,” which casts ownership within the framework of citizenship ...


Equity Culture And Decent Work: The Case Of Amazon (2017), Marcy Murninghan Mar 2018

Equity Culture And Decent Work: The Case Of Amazon (2017), Marcy Murninghan

New England Journal of Public Policy

Every year, publicly traded companies hold annual meetings at which management presents a summary of the year’s accomplishments and shareholders vote on a slate of ballot issues, referred to as “proxy resolutions,” that are placed there by either management or shareholders. As in public life, in theory this form of corporate governance relies on a division of authority and checks and balances among shareholders, the board of directors, and company management. In theory, shareholders function much like registered voters, boards serve as their elected representatives, and management operates much like the executive branch to carry out the mandates accorded ...


Capturing Regulatory Agendas?: An Empirical Study Of Industry Use Of Rulemaking Petitions, Daniel E. Walters Mar 2018

Capturing Regulatory Agendas?: An Empirical Study Of Industry Use Of Rulemaking Petitions, Daniel E. Walters

Faculty Scholarship at Penn Law

A great deal of skepticism toward administrative agencies stems from the widespread perception that they excessively or even exclusively cater to business interests. From the political right comes the accusation that business interests use regulation to erect barriers to entry that protect profits and stifle competition. From the political left comes the claim that business interests use secretive interactions with agencies to erode and negate beneficial regulatory programs. Regulatory “capture” theory elevates many of these claims to the status of economic law. Despite growing skepticism about capture theory in academic circles, empirical studies of business influence and capture return ambiguous ...


Entrepreneurship Education Empowers Youth To Change Their Lives, Marianna Brashear, Jason Riddle Mar 2018

Entrepreneurship Education Empowers Youth To Change Their Lives, Marianna Brashear, Jason Riddle

National Youth-At-Risk Conference Savannah

The Foundation for Economic Education (FEE) aims at equipping Title 1 schools with free, hands-on, engaging materials that any teacher can facilitate either individually or in a classroom setting with no background in entrepreneurship necessary. These versatile lessons, courses, and workshops teach the entrepreneurial mindset optimizing opportunities for grades 8-12 students no matter which life/career path they choose.


Progressive Antitrust, Herbert J. Hovenkamp Jan 2018

Progressive Antitrust, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Several American political candidates and administrations have both run and served under the “progressive” banner for more than a century, right through the 2016 election season. For the most part these have pursued interventionist antitrust policies, reflecting a belief that markets are fragile and in need of repair, that certain interest groups require greater protection, or in some cases that antitrust policy is an extended arm of regulation. This paper argues that most of this progressive antitrust policy was misconceived, including that reflected in the 2016 antitrust plank of the Democratic Party. The progressive state is best served by a ...


Who Bleeds When The Wolves Bite? A Flesh-And-Blood Perspective On Hedge Fund Activism And Our Strange Corporate Governance System, Leo E. Strine Jr. Apr 2017

Who Bleeds When The Wolves Bite? A Flesh-And-Blood Perspective On Hedge Fund Activism And Our Strange Corporate Governance System, Leo E. Strine Jr.

Faculty Scholarship at Penn Law

This paper examines the effects of hedge fund activism and so-called wolf pack activity on the ordinary human beings—the human investors—who fund our capital markets but who, as indirect of owners of corporate equity, have only limited direct power to ensure that the capital they contribute is deployed to serve their welfare and in turn the broader social good.

Most human investors in fact depend much more on their labor than on their equity for their wealth and therefore care deeply about whether our corporate governance system creates incentives for corporations to create and sustain jobs for them ...


The Separation Of Corporate Law And Social Welfare, William W. Bratton Jan 2017

The Separation Of Corporate Law And Social Welfare, William W. Bratton

Faculty Scholarship at Penn Law

A half century ago, corporate legal theory pursued an institutional vision in which corporations and the law that creates them protect people from the ravages of volatile free markets. That vision was challenged on the ground during the 1980s, when corporate legal institutions and market forces came to blows over questions concerning hostile takeovers. By 1990, it seemed like the institutions had won. But a different picture has emerged as the years have gone by. It is now clear that the market side really won the battle of the 1980s, succeeding in entering a wedge between corporate law and social ...


Avoiding The Pitfalls Of Net Uniformity: Zero Rating And Nondiscrimination, Christopher S. Yoo Nov 2016

Avoiding The Pitfalls Of Net Uniformity: Zero Rating And Nondiscrimination, Christopher S. Yoo

Faculty Scholarship at Penn Law

The current debate over network neutrality has not fully appreciated how service differentiation can benefit consumers and promote Internet adoption. On the demand-side, service differentiation addresses the primary obstacle to adoption, which is the lack of perceived need for Internet service, and reflects the growing heterogeneity of consumer demand. On the supply-side, monopolistic competition has long underscored how product differentiation can create stable equilibria with multiple providers – notwithstanding the presence of unexhausted economies of scale – by allowing competitors to target subsegments of the overall market that place a higher value on particular services. Conversely, prohibiting service differentiation would restrict competition ...


Gleaning As A Transformational Business Model For Solidarity With The Poor And Marginalized, Bruce D. Baker Oct 2016

Gleaning As A Transformational Business Model For Solidarity With The Poor And Marginalized, Bruce D. Baker

SPU Works

“Gleaning” refers to the mandate within the Mosaic Law that harvesters should leave behind “gleanings” for the sake of the poor who subsist on the literal and figurative margins of society. Although this biblical mandate is generally neglected and considered irrelevant in modern business practice, it holds powerful lessons to help guide modern businesses into transformational solidarity with the poor and marginalized. This paper interprets the biblical significance of gleaning, to discern how the principles of gleaning, though rooted in ancient agrarian culture, might be applicable to modern business which is generally far removed from agriculture. The exegesis and analysis ...


Better Work And Global Governance, Paul Alois Jun 2016

Better Work And Global Governance, Paul Alois

All Dissertations, Theses, and Capstone Projects

This dissertation is a case study of Better Work, a program run by the International Labor Organization and the International Finance Corporation. It aims to improve working conditions and productivity in the apparel industry. The purpose of this case study is to examine the role that international organizations can play in global governance. The research presented here comes from interviews, document analysis, and an examination of quantitative data on factories’ working conditions. In-person interviews were conducted in the United States, Switzerland, Vietnam, and Indonesia; many phone interviews took place with individuals in other countries. Both publicly available documents and internal ...


Corporate Responsibility In Peace Building, Conflict Prevention And Development: The Role Of The Mining Sector In Ghana, Abdul Karim Issifu May 2016

Corporate Responsibility In Peace Building, Conflict Prevention And Development: The Role Of The Mining Sector In Ghana, Abdul Karim Issifu

Journal of Interdisciplinary Conflict Science

This article seeks to explore the role of the mining sector in peace building, conflict prevention and community development in Ghana. After thoroughly reviewing secondary data, including articles, books, journals, newspapers, etc., via critical document review and qualitative research approaches the research found that, there is no legal document on CSR in Ghana, yet mining companies in a free will, have executed CSR programs laying down for peace, security and development in the country. More so, this article provides a theoretical support for the Integrative theory of CSR on the basis that, the socio-economic, political, cultural and environmental needs of ...


Antitrust Balancing, Herbert J. Hovenkamp Apr 2016

Antitrust Balancing, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Antitrust litigation often confronts situations where effects point in both directions. Judges sometimes describe the process of evaluating these factors as “balancing.” In its e-Books decision the Second Circuit believed that the need to balance is what justifies application of the rule of reason. In Microsoft the D.C. Circuit stated that “courts routinely apply a…balancing approach” under which “the plaintiff must demonstrate that the anticompetitive harm…outweighs the procompetitive benefit.” But then it decided the case without balancing anything.

The term “balancing” is a very poor label for what courts actually do in these cases. Balancing requires that ...


Copyright And Good Faith Purchasers, Shyamkrishna Balganesh Jan 2016

Copyright And Good Faith Purchasers, Shyamkrishna Balganesh

Faculty Scholarship at Penn Law

Good faith purchasers for value — individuals who unknowingly and in good faith purchase property from a seller whose own actions in obtaining the property are of questionable legality — have long obtained special protection under the common law. Despite the seller’s own actions being tainted, such purchasers obtain valid title themselves and are allowed to freely alienate the property without any restriction. Modern copyright law, however, does just the opposite. Individuals who unknowingly and in good faith purchase property embodying an unauthorized copy of a protected work are altogether precluded from subsequently alienating such property, or risk running afoul of ...


The New Synthesis Of Bank Regulation And Bankruptcy In The Dodd-Frank Era, David A. Skeel Jr. May 2015

The New Synthesis Of Bank Regulation And Bankruptcy In The Dodd-Frank Era, David A. Skeel Jr.

Faculty Scholarship at Penn Law

Since the enactment of the Dodd-Frank Act in 2010, U.S. bank regulation and bankruptcy have become far more closely intertwined. In this Article, I ask whether the new synthesis of bank regulation and bankruptcy is coherent, and whether it is likely to prove effective.

I begin by exploring some of the basic differences between bank resolution, which is a highly administrative process in the U.S., and bankruptcy, which relies more on courts and the parties themselves. I then focus on a series of remarkable new innovations designed to facilitate the rapid recapitalization of systemically important financial institutions: convertible ...


Moore’S Law, Metcalfe’S Law, And The Theory Of Optimal Interoperability, Christopher S. Yoo Jan 2015

Moore’S Law, Metcalfe’S Law, And The Theory Of Optimal Interoperability, Christopher S. Yoo

Faculty Scholarship at Penn Law

Many observers attribute the Internet’s success to two principles: Moore’s Law and Metcalfe’s Law. These precepts are often cited to support claims that larger networks are inevitably more valuable and that costs in a digital environment always decrease. This Article offers both a systematic description of both laws and then challenges the conventional wisdom by exploring their conceptual limitations. It also explores how alternative mechanisms, such as gateways and competition, can permit the realization benefits typically attributed to Moore’s Law and Metcalfe’s Law without requiring increases in network size.


The (Il)Legitimacy Of Bankruptcies For The Benefit Of Secured Creditors, Charles W. Mooney Jr. Jan 2015

The (Il)Legitimacy Of Bankruptcies For The Benefit Of Secured Creditors, Charles W. Mooney Jr.

Faculty Scholarship at Penn Law

This paper explores the legitimacy—or illegitimacy—of filing and maintaining a case under the Bankruptcy Code when the sole or principal beneficiary or beneficiaries of the case would be a secured creditor or secured creditors. In the situation posited here, the application of the usual distributional priority rules would not produce any distribution for the general, unsecured creditors of the debtor. In the prototypical case virtually all of the assets of the debtor would be subject to secured claims securing obligations that exceed the value of the collateral, i.e., the secured creditor would be undersecured and there would ...


Exploring Economists & Society: Constructing Expert Identity, Joseph Fitzgerald, Brendan O'Rourke Jul 2014

Exploring Economists & Society: Constructing Expert Identity, Joseph Fitzgerald, Brendan O'Rourke

Conference papers

The recent economic crisis has created a heightened interest in economics and greater demand for economics experts. The media has played an important role in meeting this demand as mediated expertise is relied upon to understand the complex relationships within society (Albaek, Christiansen and Togeby 2003; Beck 1992; Boyce 2006; Giddens 1990). Such interactions of experts with media are a key element of the knowledge flows within society (Sturdy et al. 2009) and so have attracted research attention (Ekstrom and Lundell 2011; Hutchby 2006; Montgomery 2008). This paper contributes to this literature by focusing on the under-researched area of the ...


New York Stock Exchange, Bert Chapman Jul 2014

New York Stock Exchange, Bert Chapman

Libraries Faculty and Staff Scholarship and Research

Provides a historical overview of the origins and early development of the New York Stock Exchange.


Interpreting, Stephanie Jo Kent May 2014

Interpreting, Stephanie Jo Kent

Doctoral Dissertations

What do community interpreting for the Deaf in western societies, conference interpreting for the European Parliament, and language brokering in international management have in common? Academic research and professional training have historically emphasized the linguistic and cognitive challenges of interpreting, neglecting or ignoring the social aspects that structure communication. All forms of interpreting are inherently social; they involve relationships among at least three people and two languages. The contexts explored here, American Sign Language/English interpreting and spoken language interpreting within the European Parliament, show that simultaneous interpreting involves attitudes, norms and values about intercultural communication that overemphasize information and ...


Behaviorism In Finance And Securities Law, David A. Skeel Jr. Jan 2014

Behaviorism In Finance And Securities Law, David A. Skeel Jr.

Faculty Scholarship at Penn Law

In this Essay, I take stock (as something of an outsider) of the behavioral economics movement, focusing in particular on its interaction with traditional cost-benefit analysis and its implications for agency structure. The usual strategy for such a project—a strategy that has been used by others with behavioral economics—is to marshal the existing evidence and critically assess its significance. My approach in this Essay is somewhat different. Although I describe behavioral economics and summarize the strongest criticisms of its use, the heart of the Essay is inductive, and focuses on a particular context: financial and securities regulation, as ...


Performance Track’S Postmortem: Lessons From The Rise And Fall Of Epa’S “Flagship” Voluntary Program, Cary Coglianese, Jennifer Nash Jan 2014

Performance Track’S Postmortem: Lessons From The Rise And Fall Of Epa’S “Flagship” Voluntary Program, Cary Coglianese, Jennifer Nash

Faculty Scholarship at Penn Law

For nearly a decade, the United States Environmental Protection Agency (“EPA”) considered its National Environmental Performance Track to be its “flagship” voluntary program — even a model for transforming the conventional system of environmental regulation. Since Performance Track’s founding during the Clinton Administration, EPA officials repeatedly claimed that the program’s rewards attracted hundreds of the nation’s “top” environmental performers and induced these businesses to make significant environmental gains beyond legal requirements. Although EPA eventually disbanded Performance Track early in the Obama Administration, the program has been subsequently emulated by a variety of state and federal regulatory authorities. To ...


Corporate Governance And Social Welfare In The Common Law World, David A. Skeel Jr. Jan 2014

Corporate Governance And Social Welfare In The Common Law World, David A. Skeel Jr.

Faculty Scholarship at Penn Law

The newest addition to the spate of recent theories of comparative corporate governance is Corporate Governance in the Common-Law World: The Political Foundations of Shareholder Power, an important new book by Christopher Bruner. Focusing on the U.S., the U.K., Canada and Australia, Bruner argues that the robustness of the country’s social welfare system is the key determinant of the extent to which its corporate governance is shareholder-centered. This explains why corporate governance is so shareholder-oriented in the United Kingdom, which has universal healthcare and generous unemployment benefits, while shareholders’ powers are more attenuated in the United States ...


Wickard For The Internet? Network Neutrality After Verizon V. Fcc, Christopher S. Yoo Jan 2014

Wickard For The Internet? Network Neutrality After Verizon V. Fcc, Christopher S. Yoo

Faculty Scholarship at Penn Law

The D.C. Circuit’s January 2014 decision in Verizon v. FCC represented a major milestone in the debate over network neutrality that has dominated communications policy for the past decade. This article analyzes the implications of the D.C. Circuit’s ruling, beginning with a critique of the court’s ruling that section 706 of the Telecommunications Act of 1996 gave the Federal Communications Commission (FCC) the authority to mandate some form of network neutrality. Examination of the statute’s text, application of canons of construction such as ejusdem generis and noscitur a sociis, and a perusal of the ...


Corporate Social Responsibility In A Remedy-Seeking Society: A Public Choice Perspective, Donald J. Kochan Dec 2013

Corporate Social Responsibility In A Remedy-Seeking Society: A Public Choice Perspective, Donald J. Kochan

Donald J. Kochan

Written for the Chapman Law Review Symposium on “What Can Law & Economics Teach Us About the Corporate Social Responsibility Debate?,” this Article applies the lessons of public choice theory to examine corporate social responsibility. The Article adopts a broad definition of corporate social responsibility activism to include both (1) those efforts that seek to convince corporations to voluntarily take into account corporate social responsibility in their own decision-making, and (2) the efforts to alter the legal landscape and expand legal obligations of corporations beyond traditional notions of harm and duty so as to force corporations to invest in interests other ...


Export Controls: A Contemporary History, Bert Chapman Dec 2013

Export Controls: A Contemporary History, Bert Chapman

Libraries Faculty and Staff Presentations

Provides highlights of my recently published book Export Controls: A Contemporary History. Describes the roles played by multiple U.S. Government agencies and congressional oversight committees in this policymaking arena including the Commerce, Defense, State, and Treasury Departments. It also reviews the roles played by international government organizations such as the Missile Technology Control Regime, export oriented businesses, and research intensive universities.


Voice Without Say: Why Capital-Managed Firms Aren’T (Genuinely) Participatory, Justin Schwartz Aug 2013

Voice Without Say: Why Capital-Managed Firms Aren’T (Genuinely) Participatory, Justin Schwartz

Justin Schwartz

Why are most capitalist enterprises of any size organized as authoritarian bureaucracies rather than incorporating genuine employee participation that would give the workers real authority? Even firms with employee participation programs leave virtually all decision-making power in the hands of management. The standard answer is that hierarchy is more economically efficient than any sort of genuine participation, so that participatory firms would be less productive and lose out to more traditional competitors. This answer is indefensible. After surveying the history, legal status, and varieties of employee participation, I examine and reject as question-begging the argument that the rarity of genuine ...